10 Fla. L. Weekly Supp. 544b
Insurance — Personal injury protection — Dismissal — Assignment — Attachment of assignment of benefits to complaint of medical provider claiming PIP benefits pursuant to written assignment is not required by rule 1.130 — Provider’s allegation of standing by way of assignment must be taken as true for purposes of motion to dismiss — Motion to dismiss denied
BRADENTON SPINE AND JOINT CENTER, INC., as assignee of RANDALL MARISBERGER, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2002-SC-16084. March 11, 2003. Judith M. Goldman, Judge. Counsel: Gregory A. Zitani, Agnes, Lewis & Zitani, Chartered, Sarasota, for Plaintiff. Edgar J. Guzman, Adams, Blackwell & Diaco, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS STATEMENT OF CLAIM
THIS CAUSE came on February 12, 2003 on Defendant’s Motion to Dismiss Plaintiff’s Statement of Claim in the above-entitled cause. The Court having examined the file, heard argument of counsel and read and examined the various papers and pleadings on file herein, and being otherwise advised of the Premises it is hereupon:
ORDERED AND ADJUDGED that:
Defendant’s Motion to Dismiss is hereby DENIED for the reasons set forth herein:
PROCEDURAL BACKGROUND
This case arose out of Defendant Progressive’s reduction of an amount claimed by Plaintiff on a Health Insurance Claim Form (HCFA 1500) for Personal Injury Protection (PIP) benefits. Plaintiff alleged in its Statement of Claim at Paragraph 10, that “Randall Marisberger actually or equitably assigned, directly or beneficially, the Policy PIP benefits to Plaintiff. . .”
There was no actual assignment of benefits form attached to the complaint. The sole issue on the Motion was whether or not the Statement of Claim was subject to a Motion to Dismiss because of the failure of Plaintiff to attach an Assignment of Benefits Form.
LAW AND ANALYSIS
Defendant claimed that Florida Rule of Civil Procedure 1.130 required its attachment and cited in support of its position Eigen v. Federal Deposit Insurance Corporation, 492 So. 2d 826 (Fla. 2d DCA 1986) and Hughes v. Home Savings of America, 675 So. 2d 649 (Fla. 2d DCA 1996). Those two cases were mortgage foreclosure cases wherein the Courts ruled that the foreclosing Plaintiff was required by Fla. R. Civ. P. 1.130 to attach the documents upon which the foreclosure was based.
Defendant further argued Armenia Spine Center v. Metropolitan Gen. Ins. Co. 8 Fla. L. Weekly Supp. 817(a) (Circuit Court of the 13th Judicial Circuit of Florida in its appellate capacity, September, 2001), wherein the Court appears to require the attachment of a written assignment of benefits to the Statement of Claim or Complaint in a PIP case because “… section 627.736(5)(a), Florida Statutes, requires some sort of written instrument, at a minimum a claim form or bill, invoice of claim form approved by the Department of Insurance which is countersigned by the insured, for the insurer to make direct payment to the health care provider.”
Plaintiff distinguished Armenia Spine, id. by arguing that it was referring to the requirement of the submission of a HCFA for the carrier to make payment, and distinguished the mortgage cases by pointing out that in those cases the causes of action were clearly founded upon those written instruments and thus the mortgage documents were, ipso facto, required to be attached to the complaint.
Plaintiff argued first that Florida law specifically authorized equitable assignments, when it ruled in McClure v. Century Estates, Inc., 96 Fla. 568, 1020 So.2d 4 (Fla. 1928) at page 583 that:
“Any words or transactions which show an intention on the one side to assign, and an intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment. . . Any order, writing or act which makes an appropriation of a debt or funds amounts to an equitable assignment thereof.”
Plaintiff further argued that “For purposes of a motion to dismiss, all well pleaded allegations must be taken as true. Therefore the Court is obliged to accept the allegations at paragraph [9] of the complaint if the same is not negated by the document so filed.” Dr. M.J. Bartell v. Allstate Ins. Co., 6 Fla. L. Weekly [Supp.] 574 (a) (decision of Judge Krista Marx, County Judge, Palm Beach County, June 8, 1999.)
In the Sarasota County Court there has been a specific finding that not only is the assignment of benefits not required to be attached to the complaint, but that it is prohibited by the provision of Rule 1.130 that disallows unnecessary annexation of exhibits.
In two separate rulings on May 30, 2001, in cases entitled Dr. David B. Mankowitz, P.A. as assignee of Latoya Jackson v. Allstate Insurance Co., 8 Fla. L. Weekly Supp. 648a and David B. Mankowitz, D.C., P.A. as assignee of Malachi Jackson III, Plaintiff vs. Allstate Insurance Co., 8 Fla. L. Weekly Supp. 570a,Judge Emanuel Logalbo, County Court, 12th Judicial Circuit in and for Sarasota County ruled on the following specific language:
“…Jackson actually or equitably assigned PIP benefits to David B. Mankowitz, D.C., P.A. by written document, parol or course of conduct.”
There the Defendant sought dismissal based upon Plaintiff’s election not to attach an assignment. The court stated:
“The crux of the present case is the breach of the insurance contract, not breach of the assignment. Therefore the substance of the present controversy involves the terms of the insurance contract rather than the terms of any written assignment. The purpose of Rule 1.130 is to apprise the defendant of the nature of the cause of action so it may form a reply. [citations] Consequently, attachment of the assignment is not only not required, the provisions…”as set forth above prohibit it
The Court goes on to cite Berman, Florida Civil Procedure, Paragraph 130.3[2], where the commentator wrote:
“Elements of a cause of action, for example, capacity to sue, standing. . . are likely to be evidenced by a document or documents that would be offered at trial to prove entitlement to relief. Such documents are not, however, required to be attached under subdivision (a) of this rule [.130]”
Another well-known commentator agrees with Berman; Trawick on Fla. Prac. And Proc., Sec. 6-15, where the commentator explains that assignments need not be in writing.
“Documents relating to the right to bring the action or that are prerequisites to liability are not required. In this category are letters of administration, assignments of contracts, mortgages. . .and other instruments unless party is suing for breach of the assignment …”
This Court specifically adopts the reasoning and substance of Judge Logalbo’s rulings. While this Court is certainly in favor of and encourages early disclosure by Plaintiffs to Defendants the existence or lack thereof of a written assignment of benefits form it is clear that the lack of attachment of an assignment of benefits form is not required under the PIP statute or Rule 1.130 and thus does not subject the statement of claim to a motion to dismiss.
IT IS THEREFORE ADJUDGED:
The Motion to Dismiss is denied and the Defendant shall file its answer within 20 days of the date of this order.
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