10 Fla. L. Weekly Supp. 1012a

Insurance — Personal injury protection — Standing — Assignment — Validity — Document which assigns proceeds of any settlement or judgment to medical provider but reserves right of suit to insured is not assignment of benefits — Equitable assignment — Absent ambiguity in purported assignment, affidavits regarding parties’ activities before and after signing of purported assignment which medical provider relies upon to counter unambiguous language are irrelevant — Estoppel — No merit to argument that insurer should be estopped from defending on assignment theory because it has paid other claims to medical provider arising out of same accident/patient and paid claim at issue at reduced rate in absence of showing of detrimental reliance by medical provider on insurer’s payment

CHIROMED CHIROPRACTIC CENTER, (Martin Hill), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Action. Case No. 01-23912. Division “H”. October 3, 2003. Paul L. Huey, Judge. Counsel: Roberts J. Bradford, Jr. Robert H. Oxendine.

ORDER GRANTING SUMMARY JUDGMENTFOR STATE FARM

State Farm’s Motion for Summary Judgment having come on for hearing on June 30, 2003, and the Court having reviewed the file, heard argument of counsel and researched applicable law, FINDS, ADJUDGES AND DECREES:

1. That the form on which Plaintiff relies for standing provides, in part:

“I irrevocably assign to CHIROMED CHIROPRACTIC, INC., to the extent of any services rendered to me by CHIROMED CHIROPRACTIC, INC., the proceeds of any settlement or judgment resulting from the exercise by myself of any rights of recovery I have against any person or organization legally responsible for the bodily injury for which I have been rendered treatment and/or the proceeds of my insurance policy under which such services are covered and against which I may make a claim for payment.

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I expressly reserve any and all right of suit to procure payment of any benefits to which I may be entitled.

Signed 10/17/98 by Junette McBryde-Hill (mother and natural guardian of the minor, Martin Hill) (emphasis added).

2. That Defendant argues that this language does not constitute an assignment of benefits to the Plaintiff. The Court agrees that Martin Hill retained all rights to seek benefits from State Farm. See, e.g., Bell v. Allstate, 10 Fla. L. Weekly 298a (Hillsborough County Ct. March 3, 2003); Ward v. State Farm, 9 Fla. L. Weekly Supp. 365a (Hillsborough County Ct. April 1, 2002), cert. den. 798 So.2d 739 (Fla. 2d DCA 2001); Lapensee v. State Farm, 9 Fla. L. Weekly. Supp. 170b (Hillsborough County Ct. Jan. 17, 2002).

3. That Plaintiff further argues, notwithstanding the language of the assignment form, that it can pursue a claim for equitable assignment of benefits. The alleged equitable assignment is not based on an alleged oral agreement. Rather, the alleged equitable assignment is based on the intention of the parties when the assignment form was signed, and the actions of the parties following same. The Court addresses both theories.

4. That actions for PIP benefits are governed by the general principles of contract law. See Donovan v. State Farm, 574 So. 2d 285, 286 (Fla. 2d DCA 1991). Accordingly, the merger doctrine applies.¹ In Hall Construction Company v. Beynon, 507 So. 2d 1225, 1226 (Fla. 5th DCA 1987), the Fifth District stated: “As Professor Kuenzel of the Stetson University College of Law and most likely all other contract professors teach: ‘If you write it at all, then write it all, because if you write it at all, it will be presumed that you wrote it all.’ ” Accordingly, all discussions between the parties about their intentions are subsumed in the written assignment document. It also means that the parol evidence rule applies. As explained in detail by Judge Lazarra in Emergency Associates of Tampa, Inc. v. Sassano, D.O., 664 So. 2d 1000-1003 (Fla. 2d DCA 1995): “It is a fundamental tenet of contract law that a phrase in a contract is ambiguous only when it is of uncertain meaning and may be fairly understood in more ways than one. . . . .When faced with an unambiguous contractual provision such as this one, a trial court cannot give it any other meaning beyond that expressed and must construe the provision in accord with its ordinary meaning. (Citations omitted.) . . . Furthermore, in the absence of an ambiguity on the face of the contract, it is well settled that the actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of the contract controls.” (Citations omitted).” The law recognizes two types of ambiguities: “patent” and “latent”. A patent ambiguity is one that is objectively obvious on the face of the document. If a patent ambiguity exists, the law does not allow the taking of evidence to explain what the parties allegedly intended. In contrast, a latent ambiguity is not obvious on the face of the document and, therefore, evidence is allowed to explain the alleged confusion. Here, neither side has argued patent ambiguity, and it is obvious to the Court that there is none. Plaintiff, in essence, argues that a latent ambiguity exists because the document is internally inconsistent in the light of the PIP context. The Court disagrees and finds that because of the PIP context there is clearly no issue of material fact as to whether a latent ambiguity exists. Rather than being internally inconsistent, the document at issue is fully consistent in distinguishing between the “proceeds” of a lawsuit and the right to prosecute the “lawsuit”. Simply, the alleged assignment language assigns the fruit or “proceeds” of the tree or “lawsuit”, and not the tree itself. These transactions regularly occur in various commercial contexts, such as a doctor’s claims against lawsuits for serious bodily injury and the assignment of a portion of a stream of payments from an annuity or loan. PIP law especially respects this dichotomy in the context of insureds’ transferring rights to payment to the medical provider via a “direction to pay”, as was done here. See Ward v. State Farm at 365a. Of course, there is nothing empty or lacking consideration in an assignment of the right to payment because, for instance, it gives the health care provider the right to lien or garnish the claim to the extent of its interest. Absent ambiguity, the affidavits relied upon by Plaintiff to counter the unambiguous contractual language are irrelevant and do not constitute admissible evidence. Accordingly, no activities of the parties, including the assignor, undertaken before or after signing the written assignment are material to an evaluation of the intentions of the parties in this case.

5. That there appears to be some confusion in the PIP assignment arena arising from reliance on the following statements that are often repeated in PIP litigation: “An equitable assignment arises when one party intends to assign certain rights and duties to another party and the other party intends to receive those rights and duties.”; “Courts may find an equitable assignment where it is necessary to effect the plain intent of the parties or to hold otherwise would be unjust.”; “No particular words are needed for a document to be considered an assignment.”; “Formal requisites of such an assignment are not prescribed by statute and it may be accomplished by parole, by instrument in writing or other mode, such as delivery of evidences of the debt, those may demonstrate an intent to transfer and acceptance of it.”; “The test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee.” See, e.g., Lapensee v. State Farm at 170b (Quoting Giles v. Sun Bank, N.A., 450 So. 2d 258 (Fla. 5th DCA 1984); Fernandez v. Liberty Mutual Insurance Co., (Fla. 6th Judicial Circuit, Appellate, Case No. 97-001663 1998); and, Boulevard National Bank of Miami v. Air Metals Industries, Inc., 176 So. 2d 94 (Fla. 1965)). This Court fully agrees with the decision in Lapensee, which applied the contractual principles addressed above. In fact, the Lapensee decision is instructive in its analysis of “a formal writing or clear intent of the parties. . .”. Sua sponte, the Court specifically observes the law does not allow one to ignore, bury, or do an end-around a written assignment other than through avenues available under contract law. That is, if an unambiguous contract exists, the Plaintiff cannot claim equitable assignment arising out of the same billings. Although not directly on point, the same rationale prevents a person subject to written contract from claiming damages in quantum meruit. The Plaintiff can, if factually supported, argue that the terms of written assignment were amended in accordance with the contract or under some common law theory of contractual amendment, such as subsequent acts or conduct. However, if claiming subsequent acts, those acts must be between the patient/insured and the health care provider, not the provider and insurer. Lastly, the Plaintiff /medical provider argues the insurer should be estopped from defending on the assignment theory because it has paid other claims to this provider arising out of the same accident/patient event. Alternatively, the medical provider submits the insurer paid the very claim at issue albeit at an excessively reduced amount. In the absence of factual support in the record, the estoppel argument fails to show detrimental reliance by Plaintiff on the insurer’s payment. Clearly, in the run of the mill reduction case, no adverse reliance can be evidenced by Plaintiff.

6. That for the reasons stated above, Defendant’s motion for summary judgment is hereby granted.

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¹See Federal Deposit Insurance Corporation v. Hemmerle, 592 So.2d 1110, 1113 (Fla. 4th DCA 1991) (“The [doctrine of merger] and the [parol evidence rule] preclude the introduction of evidence of any prior or contemporaneous oral agreement which varies, alters or contradicts the terms of a written agreement.”).

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