10 Fla. L. Weekly Supp. 941b
Insurance — Personal injury protection — Standing — Assignment — Validity — Lack of medical provider’s signature on assignment does not invalidate assignment where conduct of medical provider in providing insured with assignment for her signature, treating insured, submitting bills to insurer, and filing PIP suit based on assignment clearly demonstrate provider’s intent to accept assignment — Insurer’s motion for summary judgment denied
WELLNESS ASSOCIATES OF FLORIDA, (Marie Auguste, Patient), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-13167 COCE (51). August 29, 2003. Martin R. Dishowitz, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. James Sparkman, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY FINAL JUDGMENT
THIS CAUSE, having come on to be heard on August 22, 2003, upon the Defendant’s Motion for Summary Final Judgment and the Court having heard argument of counsel, and being otherwise fully advised in the premises, it is hereupon
ORDERED AND ADJUDGED that said Motion be and the same is hereby DENIED. The facts of this case are as follows:
1. This is an action for Personal Injury Protection benefits filed by Plaintiff on May 8, 2002.
2. Defendant filed its Motion for Summary Final Judgment on August 7, 2002.
3. In its Motion, Defendant asserts that because the Plaintiff, a medical provider, failed to sign the assignment of benefits, there is no acceptance of the assignment of benefits, and therefore Plaintiff has no standing to bring this action.
4. Plaintiff’s assignment of benefits displays Plaintiff’s corporate name at the top of the document. The language provides, “I Marie Auguste hereby irrevocably assign the benefits of any policy of insurance, indemnity agreement, or any other collateral source under automobile insurance with Progressive to Wellness Associates of Florida, Inc., for services rendered to me covered by Personal Injury Protection (PIP) coverage. . .” (See Assignment of Benefits which was attached as an exhibit to Plaintiff’s complaint). Plaintiff provided the insured with the assignment of benefits for her signature and has brought suit based on the assignment of benefits, clearly demonstrating Plaintiff’s intent to accept said assignment.
5. The Courts in Florida have consistently held that no particular words or form of instrument is necessary to effect an assignment and any language, however informal, which shows the intention on one side to assign a right or chose in action, and an intention on the other side to receive it, if there has been valuable consideration, will operate as an effective equitable assignment. Giles v. Sun Bank, 450 So.2d 258 (Fla. 5th DCA 1984); Asphalt Paving, Inc. v. Ulery, 149 So.2d 370 (Fla. 1st DCA 1963). The true test is whether the debtor would be justified in paying the debt to the person claiming as an assignee. Id.
6. Moreover, other courts have ruled that a motion to dismiss based on the fact that the assignment of benefits lacked the signature of the medical provider, should be denied. Health Care Center of Tampa (a/a/o Darith Medows) v. Nationwide Mutual Fire Insurance Company, 10 Fla. L. Weekly Supp. 262a (County Court of the 13th Judicial Circuit, February 28, 2003). The Court ruled that the assignment of benefits was in fact valid. “. . .The lack of a written signature by the medical provider on the assignment standing alone does not invalidate an otherwise valid assignment of benefits. Further the Court can look to the provider’s conduct by treating the patient, submitting bills and filing a PIP suit to determine it was the intent of the provider to accept the assignment of benefits.” citing Total Health Care of Florida (a/a/o Reina Perez) v. United Automobile Insurance Company, 9 Fla. L. Weekly Supp. 639.
7. To grant summary judgment, the moving party has the burden to conclusively demonstrate the absence of a genuine issue of material fact with proof sufficient to overcome all reasonable inferences that may be drawn in the opposing party’s favor. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966); Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).
8. If the evidence raises any issue of material fact, that is, if it conflicts with or permits different reasonable inferences, or tends to prove the issues, summary judgment is improper. Moore v. Morris, supra, at 668. This test also mandates denial of the motion unless there is a “complete” absence of material fact. Blanco v. Allen, supra, at 1357. Also see Hervey v. Alfonso, 650 So. 2d 644, 645 (Fla. 2d DCA 1995).
9. The dispute in the present case centers around a breach of an insurance contract, not breach of the assignment of benefits. Accordingly, there are genuine issues of material fact as to liability against Defendant and Defendant is not entitled to judgment as a matter of law.
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