10 Fla. L. Weekly Supp. 565a
Insurance — Personal injury protection — Standing — Assignment — Validity — Despite subheading “Assignment of Benefits” and use of word “assignment,” document is not assignment but direction to pay/authorization for direct payment where language only assigns payment, not rights or benefits — Complaint dismissed with prejudice
ORTHOPAEDIC ASSOCIATES OF SOUTH BROWARD, P.A., (Georgianna McCarthy-Walker), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-407 CC “53”. April 22, 2003. Rehearing Denied May 23, 2003. William W. Herring, Judge. Counsel: Roberts J. Bradford, Jr., Fort Lauderdale. James T. Sparkman, James T. Sparkman & Associates, Fort Lauderdale.
ORDER OF DISMISSAL WITH PREJUDICE
This civil PIP cause having been heard at hearing held on April 21, 2003 on the Court’s motion to dismiss with prejudice for lack of standing, argument having been heard, it is
ORDERED that the complaint of the Plaintiff, ORTHOPAEDIC ASSOCIATES OF SOUTH BROWARD, P.A., is dismissed with prejudice for lack of standing to sue. Specifically, the document attached to the complaint is not an assignment of benefits, but merely the functional equivalent of a direction to pay/authorization for direct payment. The issue is one of law, only, as the document is unambiguous despite the subheading “Assignment Of Benefits” and the language “this assignment”. The operative language of the paragraph states, “I ….. assign payment to ….. of all medical benefits applicable and otherwise payable to me,……”. What is being assigned? Payment only is being assigned, not rights or benefits; to interpret the wording otherwise would be to ignore standard rules of grammatical construction. The object of the verb “assign” is the noun “payment,” with the phrase commencing with the conjunction “of” being an adjectival clause describing what the payments are. An assignment of payment is the functional equivalent of a direction to pay. See Health Applications Systems, Inc. v. Hartford Life and Accident Insurance Co., 381 So.2d 294 at 297 (1st D.C.A. Fla. 1980); MDR Chiropractic v. Progressive Express Insurance Co., 9 FLW [Fla. L. Weekly] Supp. 328 (Co. Ct., Palm Beach, March 14, 2002); Physicians Injury Center v. Progressive Express Insurance Co., 9 FLW [Fla. L. Weekly] Supp. 169a (Cir. Ct. App. Divn., 13th Cir., Hillsborough Co., January 17, 2002); and Wallace v. Omni Insurance Co., 5 FLW [Fla. L. Weekly] Supp. 284b (Cir. Ct., App. Divn., 6th Cir., Pinellas Co., February 2, 1998). It is
FURTHER ORDERED that the time period within which the Plaintiff may move for rehearing/reconsideration is extended through May 16, 2003.
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ORDER DENYING PLAINTIFF’S MOTION FOR REHEARING
This civil case having been considered by the Court, without hearing, on the Plaintiff’s motion for rehearing of the April 22, 2003, order of dismissal, and having reviewed the motion and court file, and being advised, it is
ORDERED that the motion for rehearing of the Plaintiff, ORTHOPAEDIC ASSOCIATES OF SOUTH BROWARD, P.A.’s, is denied, without hearing, as such motion is utterly lacking in merit, the Plaintiff’s complaint not being susceptible of amendment.
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