10 Fla. L. Weekly Supp. 573a
Insurance — Personal injury protection — Error to dismiss amended complaint based on motion to dismiss first complaint for lack of standing because medical provider had right to file amended complaint without prior leave of court, as insurer had not yet filed answer or other responsive pleading, and once provider filed amended complaint legal sufficiency of first complaint as well as motion to dismiss directed to it became moot where amended complaint did not express an intention to save any portion of first complaint — Standing — Assignment — Even if medical provider had not filed amended complaint, dismissal of complaint based on language in purported assignment stating that it is assignment of benefits not assignment of cause of action would be error since such language is internally inconsistent and presents fact issue as to who owns cause of action against insurer — Further, a motion to dismiss for lack of standing directed to amended complaint would have failed because amended complaint sets forth cause of action based on equitable assignment
GAINESVILLE MRI CENTER, On behalf of Karen Olaciregui, Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 02-2757-CI-88A. UCN522002* *002757XXCI*P. June 9, 2003. John A. Schaefer, Judge. Appeal from Order of Dismissal, Pinellas County Court, County Judge Walter Fullerton. Counsel: Angela M. Stone, St. Petersburg, for Appellant. Maria Y. Somers, St. Petersburg, for Appellee.
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Gainesville MRI Center, on behalf of Karen Olaciregui (Gainesville MRI), from the Corrected Order Dismissing Amended Complaint, entered April 24, 2002, in favor of Progressive Express Insurance Company (Progressive).1 Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.
The record shows that the underlying proceedings began when Gainesville MRI filed a Complaint, on May 7, 2001, against Progressive alleging that Progressive had failed to pay personal injury protection (PIP) benefits under the provisions of an insurance policy entered into between Ms. Olaciregui and Progressive. Attached to the Complaint was a document entitled “Assignment of Benefits, Liens and Direct Payment Authorization” (Document) which, according to Gainesville MRI, provided Gainseville MRI with the authority to pursue collection of benefits due Ms. Olaciregui. On August 9, 2001, Progressive responded by filing a Motion to Dismiss claiming that Gainesville MRI lacked standing to pursue its claim of benefits. This argument was based solely on the language contained in the Document which stated, in bold, “THIS DOCUMENT CONSTITUTES AN ASSIGNMENT OF BENEFITS NOT AN ASSIGNMENT OF CAUSE OF ACTION.”
On January 14, 2002, before Progressive’s Motion to Dismiss was heard by the trial court, Gainesville MRI filed a Motion for Leave to Amend and its First Amended Complaint. The Amended Complaint omitted language of a direct assignment and, instead, asserted that there had been an equitable assignment of benefits from Ms. Olaciregui to Gainesville MRI, thereby giving Gainesville MRI standing to pursue Progressive for unpaid bills. There were no attachments to the Amended Complaint. Although Progressive did not file a new motion to dismiss the Amended Complaint, the trial court nevertheless dismissed the Amended Complaint based on Progressive’s Motion to Dismiss, filed August 9, 2001, solely due to the language contained in the Document (as set forth above in bold). In so doing, the trial court found that “[t]he Court cannot permit Plaintiff to ignore a document of record evincing no assignment.”2
In reviewing the record de novo, this Court finds that the trial court erred in granting Progressive’s Motion to Dismiss based on Gainesville MRI’s original Complaint. See Fox v. Professional Wrecker Operators of Florida, Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001) (stating that the standard of review of an order granting a motion to dismiss is de novo). Initially, the Court finds that it is incontestable that Gainesville MRI had a right to file its Amended Complaint, without prior leave of court, as Progressive had not yet served an answer or other responsive pleading. See Fla. R. Civ. P. Rule 1.190(a); see also Forum v. Boca Burger, Inc., 788 So.2d 1055, 1057 (Fla. 4th DCA 2001) (stating that a motion to dismiss is not a “responsive pleading” because it is not even a pleading). Once Gainesville MRI filed its Amended Complaint, the legal sufficiency of the first Complaint, as did the Motion to Dismiss directed to it, became moot where the Amended Complaint did not express an intention to save any portion of the original pleading. See id.; see also State Farm Fire and Casualty Co. v. Higgins, 788 So.2d 992, 995 (Fla. 4th DCA 2001) (stating an amended complaint supercedes an earlier pleading where it does not express an intention to save any portion of the original pleading) (citations omitted).Therefore, the trial court erred in dismissing the Amended Complaint based on the pleadings set forth in the first Complaint, including the attached Document.
Although reversing this case as provided above, this Court will address various points argued by the parties in their briefs for the sake of clarity on remand. First, if Gainesville MRI had not filed the Amended Complaint, an order granting Progressive’s Motion to Dismiss based on the Document attached to the first Complaint would have been reversible error. The “offensive” language contained in the Document, “THIS DOCUMENT CONSTITUTES AN ASSIGNMENT OF BENEFITS NOT AN ASSIGNMENT OF CAUSE OF ACTION,” is internally inconsistent. “As a general rule, if an insured has assigned her right to receive personal injury protection (PIP) benefits to a health care provider, the insured may not file a lawsuit to collect the assigned benefits.” See Livingston v. State Farm Mutual Automobile Ins. Co., 774 So.2d 716, 716 (Fla. 2d DCA 2000). Therefore, a fact issue existed as to who “owned” the cause of action against Progressive, the insured, Ms. Olaciregui, or her medical provider, Gainesville MRI, which would preclude dismissing the Complaint for lack of standing. See Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So.2d 469, 470 (Fla. 5th DCA 2001) (stating that only the insured or the medical provider “owns” the cause of action against the insurer at any one time and the one that owns the claim must bring the action if an action is to be brought) (citations omitted); see also Garcia v. State Farm Mutual Automobile Ins. Co., 766 So.2d 430, 432 (Fla. 5th DCA 2000) (remanding case to trial court where a fact question existed as to whether the insured had assigned her right to benefits).
It is noted that there is other language in the Document which appears inconsistent. For example, in the first paragraph it states, “ . . . I [Ms. Olaciregui] authorize GAINESVILLE MRI to prosecute said action. . .”. Also, in the fourth paragraph it states, “[t]his assignment is not intended to assign any other causes of action that may belong to the undersigned patient.” It is difficult to reconcile these portions of the Document with the bold cap sentence, “THIS DOCUMENT CONSTITUTES AN ASSIGNMENT OF BENEFITS NOT AN ASSIGNMENT OF CAUSE OF ACTION.”
Second, had Progressive filed a second Motion to Dismiss for lack of standing directed to the Amended Complaint, it also would have failed. In reviewing the Amended Complaint, this Court finds that it sets forth a cause of action based on an equitable assignment from Ms. Olaciregui to Gainesville MRI. See Fox, 801 So.2d at 178 (stating that in reviewing a motion to dismiss, the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations). As the Fifth District Court of Appeal held in Giles v. Sun Bank, N.A., no particular words of art or form of instrument are necessary to allege an equitable assignment. See Giles v. Sun Bank, N.A., 450 So.2d 258, 260 (Fla. 5th DCA 1984) (citations omitted). The Giles Court explained that, “. . . any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention of the other to receive, if there is valuable consideration, will operate as an effective equitable assignment.” Id. This Court, of course, makes no comment on who may ultimately prevail after the evidence unfolds.
Before concluding, it is noted that Neuromuscular Medical Centers of Florida v. Metropolitan Property and Casualty Insurance Company, 9 Fla. L. Weekly Supp. 485a (Fla. Pinellas Cty. Ct. April 30, 2002), and Wallace v. Omni Insurance Company, 5 Fla. L. Weekly Supp. 284b (Fla. 6th Cir. Ct. App. Div. Feb. 2, 1998), cases cited to by both parties, are distinguishable from the present case. The most obvious distinction in Neuromuscular, is that the county court was ruling on a motion for summary judgment, not a motion to dismiss, so was not confined to the four corners of the complaint. Although there are similarities between the insurance policy language in Neuromuscular and the present case, there are two notable distinctions: the insured in Neuromuscular failed to get the insurer’s consent before executing an assignment, as required by the insurance policy, and the insured attempted to assign benefits to the medical provider prior to any “loss” being sustained, i.e. before the commencement of treatment.
Wallace is also distinguishable from the present case. The insured in Wallace executed an “Authorization to Pay Provider” that specifically stated, “this is not an assignment of my benefits nor of any causes of action(s) for such insurance benefit . . .”, which clearly precluded any purported assignment. (emphasis added).
Therefore, it is,
ORDERED AND ADJUDGED the Corrected Order Dismissing Amended Complaint is reversed and this cause of action is remanded for further action consistent with this Order and Opinion. It is further
ORDERED AND ADJUDGED that the Appellant’s Motion for Attorneys Fees is granted. Gainesville MRI is entitled to reasonable attorney’s fees expended on this appeal conditioned upon it ultimately prevailing in the action below. The trial court shall determine the amount of these fees.
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1This Court finds that this order is final for the appellate purposes, to which neither party disputes. See Martinez v. Collier County Public Schools, 804 So.2d 559, 560 (Fla. 1st DCA 2002) (finding that dismissal without prejudice is “final” for appellate purposes, if its effect is to bring an end to judicial labor).
2The trial court also stated that, “[i]n a recent, similar case the Court granted dismissal finding that although there had been an assignment of benefits to this Plaintiff, there was no assignment of the cause of action.” This “similar case” is not a part of the appellate record and this Court is unsure of the case being referred to that may have formed the basis of the trial court’s ruling.
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