10 Fla. L. Weekly Supp. 1056a
Insurance — Personal injury protection — Standing — Assignment — Validity — Medical provider did not have standing to bring PIP suit against insurer based on document entitled “Appointment of Agent-in-Fact with Power of Attorney,” which states that insured retains all rights and interest in insurance policy and that medical provider will not enter into any dispute with insurer over payment of benefits and may only operate as agent-in-fact to obtain payment for medical services — Summary judgment granted in favor of insurer
COMPREHENSIVE PHYSICIANS GROUP as assignee of TIFFANY SMILEY, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-3116-19-Z. August 27, 2003. Carmine M. Bravo, Judge. Counsel: Debra Botwin. Sandra Kotur, Adams, Blackwell & Diaco, P.A., Tampa.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARYFINAL JUDGMENT AND MOTION FOR PROTECTIVE ORDER
This Cause having come before the Court on April 16, 2003 on Defendant’s Motion for Summary Final Judgment and Motion for Protective Order, and this Court having heard argument of counsel, and reviewed the applicable case law and being otherwise duly advised in the premises, the Court hereby finds:
1. The Plaintiff, Comprehensive Physicians Group, is a healthcare provider which rendered treatment to Tiffany Smiley for injuries she allegedly sustained in a motor vehicle accident which occurred on December 11, 1997.
2. Plaintiff, Comprehensive Physicians Group, filed this Personal Injury Protection Lawsuit to recover payment for submitted medical bills that were denied and/or reduced by Defendant, Progressive Express Insurance Company.
3. Plaintiff, in paragraph 2 of its Amended Complaint, alleges that the insured completed an assignment of benefits assigning her rights, title and interest under a policy of personal injury protection automobile insurance to the Plaintiff. This document was attached to the Amended Complaint as Exhibit “A”.
4. Exhibit “A”, entitled “APPOINTMENT AS AGENT-IN-FACT WITH POWER OF ATTORNEY” which was attached to the Amended Complaint, purportedly represented the assignment of benefits upon which Plaintiff was relying to establish its standing.
5. On December 27, 2002, Defendant filed a Motion For Summary Final Judgment and Motion for Protective Order, in which it alleged that the Plaintiff does not have standing to bring the instant lawsuit based upon the undated document signed by Tiffany Smiley because the operative language is not sufficient to be a true assignment of benefits. In fact the document clearly states that it is not intended to operate as an assignment. Defendant further maintained that this document contains contradictory language which results in a nullity. Florida MRI, Inc. v. State Farm Auto Ins. Co., 8 Fla. [L.] Weekly Supp. 398 (17th Judicial Circuit 2000). Finally, Defendant maintained that the document is legally insufficient to transfer rights and benefits under Tiffany Smiley’s PIP policy of insurance with the Defendant to the Plaintiff.
6. In the first paragraph of this purported assignment of benefits attached to the Amended Complaint it states as follows:
“The undersigned expressly retains all rights and interest in any insurance policy that may provide for payment of medical services, including any personal injury protection policy. This instrument is not intended to operate as an assignment as that term is used in Florida Statutes 627.736 and any provision(s) of this instrument that may be interpreted as such shall be considered null and void from the beginning and the remaining provision(s) of this instrument shall be severed from said provision(s) and will remain in full force, effect and operation.”
7. The second sentence of the second paragraph of this purported assignment of benefits states:
“My medical provider will not enter into any dispute with my insurance company over payment of benefits, but will only operate as my Agent-In-Fact to obtain payment for medical services by said provider. This instrument is not intended to provide my medical provider with any ownership interest in any insurance policy that may pay medical benefits and is intended solely for the convenience of the parties and to expedite payment by my insurance company for medical services rendered to me.”
8. Plaintiff maintained that the document gave the Plaintiff power of attorney as an agent-in-fact of Tiffany Smiley. Plaintiff cited to Superior Ins. Co v. Libert, 776 So.2d 360 (Fla. 5th DCA 2001) in support of its position.
9. The Court finds that based upon the language contained in the document entitled “APPOINTMENT AS AGENT-IN-FACT WITH POWER OF ATTORNEY” cited herein that the Plaintiff did not have authority to bring this suit. The Court further finds that the insured retained all rights under her policy of insurance and she was in fact the only one authorized to bring suit. Therefore, the Plaintiff does not have standing to bring this suit.
It is therefore, ORDERED AND ADJUDGED, that Defendant’s Motion For Summary Final Judgment and Motion for Protective Order is hereby GRANTED in its entirety.
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