10 Fla. L. Weekly Supp. 160a
Insurance — Personal injury protection — Standing — Assignment — Validity — Medical authorization and direction to pay is valid assignment — Reservation of “right to pursue settlement, judgment or verdict” is not reservation, but statement that requirement to pay is not conditioned upon its recovery by a judgment — Retention of financial liability does not render assignment invalid — Language relating to direct payment in same document as language of assignment does not negate assignment
ADVANCED ORTHOPEDIC INSTITUTE INC., (as assignee of Belinda Carter), Appellant, vs. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, a foreign corporation, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 02-6586. Division X. L.C. Case No. 01-12524-SC. December 30, 2002. James M. Barton, II, Judge. Review of a final order of the County Ct., Hillsborough County. Counsel: Geoffrey B. Steiner, Geoffrey B. Steiner & Associates, P.A., Tampa, for Appellant. Michael C. Clarke, Reynolds & Stowell, P.A., St. Petersburg, for Appellee.
The question before the Court is whether the alleged assignment is valid, thus conferring standing on Appellant. The trial court concluded that it was not valid and dismissed the suit, and this appeal followed. We disagree with the trial court’s decision and reverse.
The standard of review is de novo, as the question is one of law. W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So. 2d 297 (Fla. 1st DCA 1999).
The document in question, entitled “Medical Authorization and Direction to Pay” states in relevant part:
…I hereby assign the benefits due under my policy, otherwise payable to me, but not to exceed the health car provider’s charges, to Chet J. Janecki, M.D.. I authorize and direct that payment for covered services may be made by my insurer to Chet J. Janecki, M.D. Under no circumstances is this agreement revocable, nor can it be changed unless proof of payment in full of the doctor bill is provided to you.
I fully understand that I am directly responsible to my said doctor and/or provider of care for all medical bills submitted by him/them for services rendered to me. And, I further understand that such payment is not contingent on any insurance policy, settlement, judgment, or verdict by which I may eventually recover said fee.
I hereby agree to pay for services rendered…
The undersigned …gives to the doctor Power of Attorney to sign my name or to endorse any checks made jointly payable to myself and said doctor…for payment of medical services.
The plain language of the document leads us to the conclusion that it is an assignment. Indeed, the trial judge refers to the document as an assignment in the final order, stating that “the assignment is not unqualified…”. This, of course, indicates the first of the two concerns that the trial court had with the document — that it is not an unqualified assignment because the insured retains potential liability as well as “the right to pursue settlement, judgment, or verdict.” Had she not assigned her right to benefits, the insured could still maintain a lawsuit on her own behalf against any third party. We interpret the so-called reservation of rights, not as a reservation at all, but, rather, as a statement that the requirement to pay is not conditioned upon its recovery by a judgment. The provision in question would protect the health care provider in the event the insurer refuses to pay benefits, and we interpret it as such. Nothing in the document allows the insured to maintain a lawsuit against the insurance company.
Additionally, there is decisional law that upholds the validity of an assignment even though the insured retains financial liability. In other words, the retention of financial responsibility does not always qualify an assignment. Oglesby v. State Farm Mutual Automobile Insurance Co., 781 So.2d 469 (Fla. 5th DCA 2001); Livingston v. State Farm Mutual Auto. Ins. Co., 774 So.2d 716 (Fla. 2d DCA 2000). However, because the insured has given up her right to sue her insurance company, the health care provider should not be able to sue her for that portion of the bill deemed unreasonable by the insurance company, should the situation arise. Livingston.
Finally, the trial court also took issue with the fact that the terminology of direct payment was used in conjunction with assignment. The trial court judge stated in the hearing leading to the final judgment, that the terms cancelled each other out and rendered the document a nullity, citing OGD Diagnostic Rehabilitation Services, Inc. and U.S. Health Center, Inc. v. Allstate Insurance Company, 6 Fla. L. Weekly Supp. 725 (Fla. Co. Ct. — 17th Judicial Circuit 1999). However, in OGD there were two separate, clearly inconsistent documents signed on the same day. This is not the situation here. It is true that the document is entitled “Medical Authorization and Direction to Pay.” Had it not contained language of assignment within the body of the document, this alone would have been a mere direction to pay and would not constitute a valid assignment. This Court has routinely held that authorizations for direct payment, without more, do not constitute assignments. See e.g. Lapansee v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp.170 (13th Cir. 2002), cert. denied (cite); Ward v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly Supp. 365a (Fla. 13th Cir. April 1, 2002); and Vicks v. State Farm Mutual Automobile Insurance Company, appeal no. 01-8990 (Fla. 13th Jud. Cir. May 29, 2002) (all standing for the proposition that HCFAs and other similar authorizations for direct payment, without evidence of a formal assignment do not act as de facto assignments). While such an authorization may exist in the absence of an assignment, typically, an assignment does not exist without a direct payment provision. Thus, that there is language relating to direct payment does not negate the existence of an assignment.
It is therefore ORDERED that the decision of the trial court is REVERSED and the cause REMANDED for proceedings consistent with this opinion.
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