In Progressive Express Insurance Company v. Hartley, ____ So.3d ____ (Fla. 5th DCA October 30, 2009), Progressive provided Hartley with PIP insurance.  Hartley was injured in an accident and sought treatment from Michael C. Durant, D.C.  Upon seeking treatment from Dr. Durant, Hartley executed an assignment of benefits to "Atlantic Coast Chiropractic Clinic." 

From 1993 – 1998, "Atlantic Coast Chiropractic Clinic" was a registered fictitious name for Durant Chiropractic Clinic, Inc.  However, in 1998, that corporation failed to renew the fictitious name as required under section 865.09(6)(a), Florida Statutes (1998).  Dr. Durant’s clinic continued to operate under both the name Durant Chiropractic Clinic and Atlantic Coast Chiropractic Clinic.  Dr. Durant submitted claims to Progressive under the name Durant Chiropractic Clinic.  Progressive paid some bills and denied others. 

In November 2003, Dr. Durant executed a reassignment of benefits back to Hartley, and Hartley filed suit against Progressive for the unpaid bills.  Progressive moved for summary judgment asserting that Hartley lacked standing to bring the action.  The trial court granted Progressive summary judgment, and the circuit court reversed, finding that the initial purported assignment of Hartley to "Atlantic Coast Chiropractic Clinic" was invalid because the entity did not exist in 2003 or thereafter.  Accordingly, Hartley had retained the right to bring the suit. 

In its Petition for Cert. to the 5th DCA, Progressive argued that under section 865.09(9)(b), the initial assignment was valid.  That section provides that the failure of a business to comply with the fictitious name registration does not impair the validity of any contract of such business.  However, according to the 5th,

While that section may have supported Progressive’s argument if the initial assignment was to Durant Chiropractic Clinic, Inc., d/b/a Atlantic Coast Chiropractic Clinic (notwithstanding a failure to comply with the fictitious name registration statute), it provides no relief to Progressive in the instant case.  The fact remains that the assignment was made to a non-existent entity.  Furthermore, if we were to accept Progressive’s argument, no party could bring an action against Progressive for the alleged unpaid PIP benefits.