10 Fla. L. Weekly Supp. 85a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 478a and 10 Fla. L. Weekly Supp. 679a
Insurance — Personal injury protection — Standing — Assignment — Policy prohibiting change in interest in policy without written consent of insurer does not prohibit assignment of claim after loss — Unclear “no change in interest” language must be construed against insurer — Trial court’s entry of summary judgment in favor of medical provider without considering an affidavit submitted on behalf of insurer for its motion for summary judgment is harmless error where insurer confessed judgment on sole remaining claim
WITHDRAWN. 10 Fla. L. Weekly Supp. 478a
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. RICHARD R. SHAKER, D.C., P.A. (a/a/o Robert Cook), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 02-5390, Division X. County Case No. 01-15888-SC. December 17, 2002. Sam D. Pendino, Judge. Appeal of a final order of the County Court, the Honorable Cheryl Thomas, County Judge. Counsel: Michael C. Clark, St. Petersburg, for Appellant. Timothy A. Patrick, Tampa, for Appellee.
(PER CURIAM.) This is an Appeal from a Final Judgment entered in favor of Appellee. Appellant contends that Appellee did not have standing to bring suit because the document the insured signed purporting to assign his benefits under a PIP policy was not valid. Appellant asserts that the policy was not assignable. Appellant also contends that summary judgment was improper because the court indicated that there were issues of material fact precluding entry of summary judgment, and that the trial court failed to consider an affidavit submitted on behalf of Appellant for its motion for summary judgment. We affirm the decision of the county court.
The contested policy language states that “no change in interest in this policy is effective unless we consent in writing by written endorsement to this policy.” Florida law provides that, while policies may not be assignable, proceeds or claims after a loss are assignable. Highlands Ins. Co. v. Kravecas, 719 So.2d 320 (Fla. 3d DCA 1998); Gisela Investments N.V. v. Liberty Mutual Insurance Co., 452 So.2d 1056 (Fla. 3d DCA 1984) (prohibition against assignment of policy does not apply to claim after loss). What is meant by “no change in interest” is somewhat unclear, and, being vague, must be construed against the insurer.
As for whether summary judgment was proper, Appellant confessed judgment on the only remaining claim. Thus, the fact that the court failed to consider an affidavit of an insurance representative submitted on behalf of Appellant for its motion for summary judgment, while a technical error, was harmless.
With respect to Appellant’s motion for appellate attorney’s fees, we must deny the request. Even if Appellant were the prevailing party, its motion was tardy, as was the reply brief with which it was filed. Fla. R. App. P. 9.400(b).
It is therefore,
ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED. (SIMMS and BARTON, JJ., concur.)
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