10 Fla. L. Weekly Supp. 851b
Insurance — Personal injury protection — Standing — Assignment — Validity — Document which authorizes direct payment to medical provider, but fails to convey rights of insured in insurance policy is not assignment, and medical provider had no standing to sue under contract — No error in entry of summary judgment in favor of insurer
BOHICA ORTHOPAEDICS AND REHABILITATIVE MEDICINE, as assignee of LEANNE SEALS, Appellant, vs. PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY, Appellee. Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case No. 2002-00036 CAAP. L.C. Case No. 2000-34911 COCI. June 17, 2003. James Foxman and J. David Walsh, Judges. Counsel: James R. Evans, for Appellant. Valeria Hendricks, Davis & Harmon, P.A., Tampa, for Appellee.
ORDER GRANTING REHEARING ANDAFFIRMING SUMMARY JUDGMENT
THIS CAUSE came on before the court to consider the following matters: Motion for Rehearing filed by Appellant on May 27, 2003 regarding this court’s dismissal of the instant appeal on May 7, 2003, and Appeal from the County Court’s Order filed February 7, 2002 granting Appellee’s motion for summary judgment. The court has reviewed the record and takes notice of the “Summary Final Judgment” entered in the trial court on October 1, 2002. Based thereon, the court grants rehearing and sets aside its dismissal of the appeal entered on May 7, 2003. The circuit court has jurisdiction. The parties have waived oral argument and the court has considered the matter based upon the record and briefs filed. For the reasons expressed herein, the court affirms the lower court’s order and Summary Final Judgment.
Appellant filed suit in the lower court and alleged in the complaint that it had the status of “assignee” of the appellee’s insured, LEANNE SEALS. The complaint referred to an attached one-page document bearing the caption “Insurance Medical Release/Assignment” and dated September 9, 1999. The complaint alleged that the appellee insured LEANNE SEALS for Personal Injury Protection benefits under a policy of insurance covering, among other things, medical bills incurred in an automobile accident. Appellant alleged that the appellee had failed to pay certain medical bills and that appellant, “as assignee of LEANNE SEALS,” had been damaged thereby.
In its answer to the complaint, appellee raised the affirmative defense of appellant’s lack of standing to file the action. Appellee thereafter filed a motion for summary judgment that was heard by the trial judge at hearing conducted on January 30, 2002. At the hearing, the appellant, over appellee’s objection, presented testimony from the appellant’s office manager in opposition to the motion for summary judgment. This was improper. Orange Lake Country Club, Inc. v. Levin, 645 So.2d 60 (Fla. 5th DCA 1994). However, the trial court’s order does not reflect that it based its holding in any way upon the proffered testimony at the summary judgment hearing; therefore, this court restricts its review to the record below without reference to such testimony.
The sole argument on appeal is that the trial court erred in entering summary judgment in favor of the appellee insurance company. The circuit court, in its appellate capacity, will apply a standard of de novo review. See, Scheibe v. Bank of America, N.A., 822 So.2d 575 (Fla. 5th DCA 2002). The issue is whether “the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact” such that the movant is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c). Resolution of the issue presented only requires interpretation of a written instrument and therefore is solely a matter of law where there is no ambiguity shown. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000).
The appellant must allege in the complaint ultimate facts demonstrating that it has standing to sue. The ultimate fact alleged was its status as “assignee” from LEANNE SEALS under the authority of the document attached to the complaint referenced in paragraph two herein. The document states the following in its entirety:INSURANCE MEDICAL RELEASE/ASSIGNMENT
I hereby authorize release of medical information necessary to process my insurance claim to my insurance company, my attorney representing me and other healthcare providers involved in my medical treatment. I also hereby authorize payment of benefits due me directly to the physician for his services as described.
I understand that I am financially responsible for charges not covered by my insurance company.
The issue presented to the trial court was whether the subject document constituted an assignment of LEANNE SEALS’ rights under her policy of automobile insurance with appellee.
An assignment has been defined as “a transfer or setting over of property or of some right or interest therein, from one person to another. It is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein.” State Farm Fire and Casualty Co. v. Ray, 556 So.2d 811, 812 (Fla. 5th DCA 1990). The document relied upon by the appellant in the instant case fails to convey to the appellant, or anyone else, the rights of LEANNE SEALS in her contract of automobile insurance with the appellee. At best, the document signed by LEANNE SEALS instructs her insurance company to pay benefits “due [her]” directly to her medical providers. Nowhere in the document is there any language stating that LEANNE SEALS surrendered to the appellant her “right of property or interest in” the automobile insurance contract issued by appellee to SEALS. Ray, supra. There being no assignment of the insured’s right in the contract of insurance, the appellant had no standing to sue under the contract. See, Spears v. West Coast Builders’ Supply Co., 133 So. 97 (Fla. 1931) (assignee may sue in his own name and right on a properly assigned chose in action).
It appearing that there was no genuine issue of fact or law, the lower court correctly entered summary judgment in favor of the appellee. It is therefore
ADJUDGED that the summary judgment entered October 1, 2002 in favor of the appellee is hereby AFFIRMED.
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