25 Fla. L. Weekly Supp. 966b
Online Reference: FLWSUPP 2511RAYInsurance — Homeowners — Standing — Assignment — Where plaintiff/assignee was not in compliance with fictitious name statute at time assignment was executed in fictitious name and action was filed, but subsequently came into compliance, noncompliance was cured, and plaintiff can maintain suit from that point forward — Motion to dismiss denied
AJ WELLS ROOFING & CONSTRUCTION/Charles and Renee Ray, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Division CC-L. Case No. 16-2017-CC-2567, Division. July 31, 2017. Michelle Kalil, Judge. Counsel: Stephen M. Bush, The Bush Law Group, LLC, Jacksonville, for Plaintiff. Robert A. Kingsford, Alfano Kingsford P.A., Maitland, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This cause came before the Court for Hearing on Defendant’s Motion to Dismiss, and the Court having considered the argument of counsel and being fully advised on the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant contents that an unregistered fictitious name lacks standing to bring an action against an insurer based on an assignment to an unregistered fictitious entity and that lack of standing cannot be cured by the acquisition of standing after the case is filed. Progressive Insurance Company v. Hartley, 21 So.3d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c]; Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b].
2. The facts in the instant case are distinguishable from Hartley because in Hartley the defect was never cured. In the instant case, the Plaintiff is now in compliance with the law. In Rapid Rehabilitation, Inc. a/a/o Forbes, Cyrus v. United Automobile Insurance Company, 20 Fla. L. Weekly Supp. 649a (17th Judicial Circuit, Broward County, 2012) the court held that failure to comply with Florida Statute 865.09 can be cured after the filing of a suit and from that point forward, the suit can be maintained.
3. The facts in the instant case are also distinguishable from McGrath, because in McGrath, there was a lack of standing because the actual assignment happened after the case was filed. In the instant case, the assignment happened before the case was filed.
4. Therefore, this Court finds that the assignment was valid and the Defendant’s Motion to Dismiss is DENIED.