23 Fla. L. Weekly Supp. 575a
Online Reference: FLWSUPP 2306BILLInsurance — Complaint — Amendment — Substitution of plaintiff — Motion to amend complaint to substitute medical provider that is separate and distinct legal entity from plaintiff medical provider is denied
K & E EQUIPMENT, LLC, d/b/a ADVANCED CHIROPRACTIC & PHYSIOTHERAPY, a/a/o Tracie Billman, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, Civil Division. Case No. 2014 CC 006633 NC. August 31, 2015. Honorable Phyllis R. Galen, Judge. Counsel: Christina A. Goldberg, for Plaintiff. Jarod L. Gilbert, for Defendant.
ORDER ON PLAINTIFF’S “MOTION FOR LEAVETO AMEND COMPLAINT TO CHANGE PLAINTIFFNAME AND MOTION FOR PROTECTIVE ORDER”
THIS CAUSE having come before the Court on August 24, 2015 on Plaintiff’s “Motion for Leave to Amend Complaint to Change Plaintiff Name and Motion for Protective Order,” and this Court, after considering the motion, reviewing the applicable law, and hearing argument from counsel, finds as follows:Pertinent Facts
K & E Equipment, LLC d/b/a Advanced Chiropractic & Physiotherapy (a/a/o Tracie Billman) (“K & E Equipment”) filed a one-count breach of contract Complaint against State Farm Mutual Automobile Insurance Company (“State Farm”) on or about December 17, 2014. State Farm responded with certain affirmative defenses attacking K & E Equipment’s ability to maintain suit including lack of standing and failure to provide notice of a covered loss. On April 27, 2015, K & E Equipment filed a “Motion for Leave to Amend Complaint to Change Plaintiff Name and Motion for Protective Order.” Within said motion, counsel asserted that Plaintiff’s name was erroneously listed as “K & E” EQUIPMENT, LLC D/B/A ADVANCED CHIROPRACTIC & PHYSIOTHERAPY as assignee of TRACIE BILLMAN” based on a clerical error. Instead, the correct Plaintiff name should be “EDENS & KAPLAN, P.L. D/B/A ADVANCED CHIROPRACTIC & PHYSIOTHERAPY as assignee of TRACIE BILLMAN” according to the motion. Plaintiff was also of the opinion that the “clerical errors. . .will not result in prejudice to the Defendant,” and therefore leave to amend should be granted pursuant to Fla. R. Civ. P. 1.190. At hearing, counsel for Plaintiff addressed Florida’s liberal standard for amended pleadings and maintained that the correct party name for Plaintiff was “EDENS & KAPLAN, P.L. D/B/A ADVANCED CHIROPRACTIC & PHYSIOTHERAPY as assignee of TRACIE BILLMAN.”
Prior to hearing, counsel for State Farm filed “Defendant’s Request for the Court to Take Judicial Notice of Department of State, Division of Corporation Records” pursuant to Fla. Stat. §90.202 & 90.203. Counsel for Defendant presented two sets of records to the Court which reflected that “K & E Equipment, LLC” and “Edens & Kaplan, P.L.” were two distinct and separate legal entities. Counsel for Defendant pointed out that “K & E Equipment, LLC” and “Edens & Kaplan, P.L” have different tax ID numbers, business addresses, and formation dates. Therefore, it was State Farm’s position that K & E Equipment was attempting to substitute one party for another instead of correcting a clerical error. This Court agrees.Legal Analysis
Florida law distinguishes between correcting a defect in the characterization of a party, commonly referred to a misnomer, and substituting an entirely new party. See Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla. 1956); see also Gray v. Executive Drywall, Inc., 520 So.2d 619 (Fla. 2nd DCA 1988). A party may amend a Complaint to correct the identification of a party, but the plaintiff may not substitute an entirely new party. Tannenbaum Chiropractic Institute, Inc. d/b/a Cities Orthopaedic Group (a/a/o Deborah French) v. State Farm Mutual Automobile Insurance Company, 10 Fla. L. Weekly Supp. 478b (Fla. 13th Jud. Cir. App. Ct. 2003). Despite Florida’s liberal amendment standard, a substitution of parties in only permissible in cases that involve 1) death, 2) incompetency, or 3) transfer of interest as contemplated in Fla. R. Civ. P. 1.260. One Call Property Services, Inc. (a/a/o Sally Hubbard) v. USAA Casualty Ins. Co., 20 Fla. L. Weekly Supp. 829b (Fla. 19th Jud. Cir. Cty. Ct. 2013).
Tannenbaum is instructive and highly analogous to the case at bar. In Tannenbaum, an entity named “Total Orthopaedic, Inc.” treated the Insured and submitted bills to the insurer. Id. Suit, however, was filed in the name of “Tannenbaum Chiropractic Institute, Inc.” Id. Although Robert Tannenbaum, D.C. was the director of both entities, the Court found them to be separate and distinct companies as their articles of incorporation indicate. Id. The 13th Circuit Court sitting in its appellate capacity found the trial court’s decision to deny leave to amend to be proper based on Florida case law, and ultimately upheld a motion for summary judgment in favor of the defendant for lack of standing. Id. Recently, at least two other county courts have cited and followed Tannenbaum’s holding. See Ochoa v. USAA Casualty Insurance Company, 22 Fla. L. Weekly Supp. 1071b (Fla. 7th Jud. Cir. Cty. Ct., Judge Fields, November 2014) (holding that a Plaintiff cannot amend its Complaint to name an “entirely new party” other than that named in the caption); Putnam Family Care, Inc. d/b/a St. Johns Urgent Care v. USAA Casualty Insurance Company & Avis Rent A Car System, LLC, 20 Fla. L. Weekly Supp. 692a (Fla. 7th Jud. Cir. Cty. Ct., Judge Morris, April 2013) (concluding that case law is clear and well established that a new party cannot be substituted for an existing named party).
In the case at bar, the evidence presented irrefutably reflects that “K & E Equipment, LLC” and “Edens & Kaplan, P.L.” are two separate legal entities. As noted above, they have different tax ID numbers, business addresses, and effective dates. This Court finds that the facts of this case show that Plaintiff is not trying to correct a misnomer or the identification of the named Plaintiff. Instead, counsel for Plaintiff is attempting to amend the Complaint to substitute one entity for another. This case, however, does not present a situation where death, incompetency, or a transfer of interest allows for such a substitution. See Fla. R. Civ. P. 1.260. Despite Florida’s liberal amendment standard, a substitution such as the one contemplated in this case is not authorized by the Florida Rules of Civil Procedure or the case law presented. See, e.g., One Call Property Services, Inc. (a/a/o Sally Hubbard) v. USAA Casualty Insurance Company, 20 Fla. L. Weekly Supp. 829b (Fla. 19th Jud. Cir. Cty. Ct. 2013).
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Plaintiff’s “Motion for Leave to Amend Complaint to Change Plaintiff Name and Motion for Protective Order” is hereby DENIED.