10 Fla. L. Weekly Supp. 888a
Insurance — Personal injury protection — Standing — Assignment — Validity — Document stating it is direct assignment of rights and benefits under policy constitutes valid assignment of claim — Revocation language in separate document does not revoke assignment as to services rendered during nine-month period between signing of documents — No merit to argument that medical provider has no standing or case is not ripe due to fact that insured did not sustain a loss and, therefore, medical provider received nothing by assignment because loss is sustained by PIP insured when insured receives medical treatment arising out of motor vehicle accident, not when insurer refuses payment — Summary judgment on issue of invalidity of assignment due to failure of insured and medical provider to obtain insurer’s consent to assignment is not appropriate where there remains issue as to whether assignment was made after loss was incurred and, therefore, no consent is necessary — Issues of material fact also remain as to argument that plaintiff failed to comply with statute by not getting medical provider to sign box 12 of HCFA form where, because medical provider has valid assignment, it is reasonable to infer that provider is not misrepresenting fact that it is authorized to receive payment — Insurer’s motion for summary judgment denied
RAYMOND D. CLITES, D.C., P.A. (As Assignee of Robert Williams), Plaintiff(s), v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant (s). Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Action. Case No. 00-6284. Division “H”. September 23, 2003. Paul L. Huey, Judge. Counsel: Timothy Patrick, Timothy A. Patrick, P.A., Tampa. Gale L. Young.
ORDER ON DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
Defendant’s Motion for Summary Judgment having come on for hearing on August 14, 2003, and the Court having heard argument of the parties, reviewed the record and researched the law, FINDS, ORDERS AND ADJUDGES:
1. That the issues raised in the motion are fact sensitive to this case.
2. That Defendant raises four issues. One, that the language of the purported assignment documents did not effect an assignment from policy holder/assignor Williams to the Plaintiff. Two, that Plaintiff has no standing, or the case is not ripe, because William’s never sustained a loss. Three, that Plaintiff and assignor Williams failed to obtain defendant’s consent to the assignment. Four, Plaintiff failed to comply with Section 627.736(5) by not getting assignor to sign Box 12 of the HCFA form. Because these issues are raised repeatedly, the Court takes care to educate the PIP bar on the current state of the applicable law.
3. That because of the plethora of PIP cases, there always appears to be reported county and/or circuit court decisions that arguably support almost any position. Many are unhelpful for the sake of precedent because they fail to set forth the essential facts or a thorough legal analysis, and many are overruled by subsequent decisions and/or changes to the statute.
4. That the Court ruled at the hearing that the following language in Exhibit “A” constitutes an assignment of the claim: “THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS AND BENEFITS UNDER THE POLICY.” The Court further found that the revocation language in Exhibit “C” does not revoke the assignment, at least not as to services rendered in the time period between the signing of the documents, because it was not signed until almost nine months after Exhibit “A”. The unequivocal law of Florida is that an assignment for consideration, including the performance of services, cannot subsequently be unilaterally revoked. See, State Farm v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990) and Lexington Insurance Company v. Simkins Industries, Inc., 704 So. 2d 1384 (Fla. 1998). Camber Companies Southeast; LLC v. National Ins. Assoc., 9 FLW [Fla. L. Weekly] Supp. 820a (Fla. 13th Cir. Ct. 2002) is distinguishable on its facts.
5. That defendant’s second argument is also unsupported by uncontested, material facts. Defendant argues that assignor Williams did not sustain a loss; therefore, Plaintiff received nothing by the assignment. Defendant relies heavily on Neuromuscular Medical Centers of Florida, P.A. v. Metropolitan Property and Casualty Insurance Company, 9 FLW [Fla. L. Weekly] Supp. 485a (County Court, 6th Judicial Circuit, Case No. 01-5321SC 2002). However, that case explained that a loss arises at the time of treatment for injuries arising out of a motor vehicle accident. Unlike in Neuromuscular, where the facts were undisputed that the assignment was given two days prior to the first alleged treatment, as opposed to at the time of treatment, the timing of the services in relation to the timing of the signing of the assignment are not undisputed on the record presently before the Court. It must also be said that the alleged assignment language in Neuromuscular isdistinguishable from the assignment language at issue here. As an aside, the Court wonders why the distinction should matter so long as the assignment documents are signed any time before the lawsuit is filed and it is alleged and proven that consideration was given, but that query is not controlling here. In any event, the Court finds that a loss is sustained by a PIP insured when he or she receives medical treatment arising out of a motor vehicle accident, and not when an insurance company wants to unilaterally create a “loss” by refusing payment. Only this interpretation is consistent with section 627.736(4), Florida Statutes, and the ruling in Allstate v. Kaklamanos, 843 So. 2d 885 (Fla. 2003). The 30 days given to the insurance company to decide whether to pay the claim is not relevant to whether there has been an insured loss, but rather only to whether the payment for the loss is “overdue”. Whether there has been a loss for insurance purposes is not equivalent to whether the insurer breached its contractual duties to pay for the “loss,” which “loss” by definition must pre-date the breach. Defendant’s argument to the contrary defies the reality that 90% plus claims paid by PIP insurers are paid without any denial, i.e., before a “loss” occurs in their illogical parlance. Defendant’s argument further lacks credulity because the statute itself is designed to encourage such “pre-loss” assignments. Section 627.736(5), Fla. Stat. Moreover, as stated above, if insurance companies can unilaterally determine on a case by case basis when a “loss” occurs, the entire PIP system would be unworkable. In light of these reasons and the well-reasoned opinion in Kaklamanos, insurers should carefully consider the risks attendant to raising this defense.
6. That having found that there is at best for defendant a material issue of fact as to whether a loss occurred, if there is any issue at all that a loss did not occur, the Court further finds that defendant has not met its burden to prove that there is no material issue of fact as to whether it was necessary for the insurance company to consent to the assignment. Construing all facts and inferences therefrom in favor of the Plaintiff, it appears that there is an issue as to whether the assignment was made after a loss was incurred and, therefore, no consent is necessary. See, e.g., West Florida Grocery Co. v. Teutonia Fire Insurance Co., 77 So. 209 (Fla. 1918) and its PIP progeny. The Court notes that there is no factual or legal analysis in Lutz Chiropractic Clinic v. Metropolitan General Insurance Company, 9 FLW [Fla. L. Weekly] Supp. 780(a) (13th Cir., SC Div, Case No. 2001-10677 2002) or Advanced Injury Medical Rehabilitation Center, LLC. v. Metropolitan Property and Casualty Insurance Company, FLW [Fla. L. Weekly] Supp. 321a (5th Cir., Case No. H-27-cc-2001-308 2002). Brought to its logical conclusion, Plaintiff’s theory that a loss does not occur and, therefore, cannot be assigned, until after the health care provider’s claim is denied up to 30 days after it is submitted to the carrier, would essentially make it impossible for a health care provider to bring a claim, unless it obtained the claim via post-judgment relief against the assignor/patient who refused to pay the bill. As the Florida Supreme Court explained in Kaklamanos, this argument clearly mocks the legislative policy behind no-fault insurance. It is also inconsistent with the decisions holding that an assignment is binding even though the health care provider retains rights to sue the patient/insured should the insurer fail to pay. See, e.g., Oglesby v. State Farm, 781 So. 2d 469 (Fla. 5th DCA 2001) and Kaklamanos.
7. That as to Defendant’s argument four, material issues of fact and law remain. Because Plaintiff has a valid assignment, it is reasonable to infer that Plaintiff is not misrepresenting the fact that it is authorized to receive payment. The majority of circuit and county court decisions on this issue are favorable to Plaintiff.
WHEREFORE, the Motion is DENIED as to all theories.
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