18 Fla. L. Weekly Supp. 258a
Online Reference: FLWSUPP 1803BEAT
Insurance — Personal injury protection — Standing — Assignment — Validity — No error in denying directed verdict on issue of validity of assignment of benefits where insurer did not present evidence that assignment was false or was never executed — Jury properly considered testimony regarding authenticity of assignment
PEAK PROPERTY & CASUALTY INSURANCE CORP., Appellant, vs. MILLENNIUM DIAGNOSTIC IMAGING CENTER a/a/o ENERIO BEATO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-580 AP. L.T. Case No. 02-6193 SP 26. January 5, 2011. An appeal from a decision by the County Court in and for Miami-Dade County. Counsel: Stephanie Martinez and Douglas H. Stein, Seipp & Flick, LLP, for Appellant. Marlene S. Reese, Law Offices of Marlene S. Reiss, P.A, for Appellee.
(Before JERALD BAGLEY, SANDY KARLAN, and MARIA ESPINOSA DENNIS, JJ.)
(PER CURIAM.) The Court writes to address what it considers the dispositive issue in this case: that of a valid assignment of benefits (AOB) to the medical provider and appellee, Millennium Diagnostic Imaging Center (Millennium) by the insured, Enerio Beato (Beato). Millennium attached an assignment of benefits (AOB) to its demand letter for $2178.00.
Appellant Peak Property & Casualty Insurance Co. (Peak) pled an affirmative defense of lack of standing for the appellee, and asserted there was never a valid AOB executed on behalf of Millennium to bring this action.
Peak did not put on any evidence to prove that the AOB submitted was false or never executed. Beato was never examined as to this fact. Lack of Standing, as an affirmative defense, must be proven by a defendant, and here it was not. Glynn v. First Union Nat’l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2362a]; Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D281a]. We find no error in the trial court’s denial of Peak’s motion for a directed verdict concerning the AOB issue. See Easton-Babcock & Assoc., Inc. v. Fernandez, 706 So. 2d 916, 919 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D512a] (granting a motion for a directed verdict is error if sufficient contested facts or reasonable inferences therefrom exist to be decided by a jury). Testimony regarding the authenticity of the AOB existed; and the jury properly considered such in rendering its decision.
AFFIRMED.
Appellee’s Motion for Appellate Attorneys Fees is hereby granted. Additionally, appellee’s Supplemental Motion for Attorneys Fees/Sanctions is granted.
