10 Fla. L. Weekly Supp. 197a
Insurance — Personal injury protection — Standing — Assignment — Validity — Policy language providing that no “change of interest” is effective without written consent of insurer is ambiguous — PIP insured may assign medical benefits after loss regardless of any non-assignable language in policy — Motion for summary judgment on insurer’s affirmative defense denied
WISE DIAGNOSTIC SOLUTIONS (as assignee of Michael Brown), Plaintiff, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 02-10320 CC, Division D. January 16, 2003. Russell L. Healey, Judge. Counsel: Vincent P. Gallagher, Harrell & Johnson, P.A., Jacksonville. Jason Taylor, McFarlain & Cassedy, P.A.
ORDER ON OUTSTANDING MOTIONSAND SUMMARY JUDGMENT
The underlying and salient facts of this contested PIP litigation are not in dispute. On September 24, 2001, Michael Brown, (Brown) was a passenger in a motor vehicle owned by Denise Gnatt and insured by Metropolitan Property and Casualty Insurance Company. (MetLife). The insured vehicle was involved in a motor vehicle accident and Brown sought medical care allegedly related to injuries suffered in the motor vehicle accident. Brown applied for PIP coverage through MetLife and MetLife provided PIP coverage pursuant to the insurance policy and F.S. §627.736.
Brown’s medical provider referred Brown to Wise Diagnostic Clinic (Wise) for a functional capacity examination (FCE). Prior to the FCE, Wise secured Brown’s signature on an “Insurance Assignment and Instruction for Direct Payment to Provider,” document. Wise billed MetLife for the FCE. MetLife paid a portion of this bill directly to Wise which was less than the statutory 80% benefit. Wise filed suit on August 14, 2002.
The Florida Insurance Commissioner served the complaint on MetLife on August 21, 2002. A Notice of Appearance was filed by MetLife attorneys on August 28, 2002, and an answer and three affirmative defenses were filed on September 10th, 2002. The First Affirmative Defense alleged that Plaintiff was seeking payment for charges that were “neither reasonable, related or necessary.” The Second and Third Affirmative Defenses alleged that Plaintiff did not have a valid assignment of benefits.
On October 1, 2002, Wise propounded discovery to MetLife, including First Request for Production, Interrogatories and Request for Admissions.
On October 24, 2002, Wise filed a Motion for Summary Judgment on Defendant’s Second and Third Affirmative Defenses. Wise also filed a Motion to strike the First Affirmative Defense. On November 6, 2002, MetLife requested Wise grant an extension of time to respond to discovery. Wise granted an extension through November 24, 2002.
On November 26, 2002, Wise filed a Motion for Summary Judgment, relying on Florida Rule of Civil Procedure 1.370 which states (regarding admissions) “the matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request.” On the same date, Plaintiff also sent Defendant notice pursuant to a Local Rule, (Administrative Order 88-2) requesting Defendant answer all outstanding discovery within ten days to avoid a Motion to Compel.
Also on November 26, 2002, MetLife filed a Motion for Protective Order and to Stay Proceedings. On November 27, 2002, MetLife filed Defendant’s Motion for Summary Judgment and Motion to Strike Plaintiff’s Claim for Attorney’s Fee. On December 5, 2002, Plaintiff filed a Motion to Compel Discovery.
A hearing on all motions was heard on December 18, 2002. Defendant’s Motion for Summary Judgment was heard first. If granted, all other issues would be moot.
Defendant’s Motion for Summary Judgment, included a copy of the insurance policy and an affidavit from Angie Amis, Metropolitan Property and Casualty Insurance Company Litigation Specialist. The insurance policy included language concerning assignments. The relevant policy language relied upon by MetLife is found on page 21, in bold and capitalized, under the subheading ASSIGNMENT (Paragraph 11) and states: “No change of interest in this policy is effective unless we consent in writing by means of endorsement to this policy… ” The Angie Amis affidavit further avers that “Metropolitan has not authorized the insured or the claimant, Michael Brown, to assign his PIP benefits to Wise.” The parties agree that MetLife did not consent to any alleged assignment.
MetLife correctly relies upon F.S. §627.422 which states; “A policy may be assignable, or not assignable, as provided by its terms.” Accordingly, MetLife may prohibit any assignment or require prior consent. Defendant argues that the policy language clearly require MetLife to consent in writing before any assignment is effective. Defendant cites to Classic Concepts, Inc. v. Poland, 570 So.2d 311 (4th DCA 1990) which states: “It is well settled that if the language found in an insurance policy is not ambiguous or otherwise susceptible of more than one meaning, the court’s task is to apply the plain meaning of the words and phrases used to the facts before it. The courts, therefore, are not free to rewrite an insurance policy or add meaning to it that is not really there.” While that is a correct statement of law, it is not controlling in this matter. The MetLife policy does not define “change of interest.” The MetLife policy language is ambiguous and susceptible of more than one meaning; thus requiring judicial interpretation.
The MetLife policy language is silent regarding prior written consent for an assignment of medical benefits after a loss has occurred. Therefore this court, pursuant to Classic Concept, is not able to translate “change of interest” into some type of “plain language” as definitive language does not exist in the “assignment paragraph.” But even if the MetLife insurance policy could be construed to require prior written consent, Defendant’s argument would fail.
Defendant cited Lexington Insurance Company v. Simkins Industries, Inc., 704 So.2d 1384 (Fla. 1998) to further underscore that an insurer may require the insured to obtain written consent prior to assigning benefits. In Lexington, Simkins loaned a hotel developer five million dollars to develop the hotel property. In exchange the hotel developer assigned all rights under a Lexington Insurance Company casualty policy. The Lexington Insurance policy stated “assignment of this policy shall not be valid except with the written consent of this Company Your rights and duties under this policy may not be transferred without our written consent…” The hotel suffered fire damage and Simkins attempted to collect from Lexington under the assigned policy. The Florida Supreme Court held that the “purpose of a provision prohibiting assignment is simple — to protect an insurer against unbargained-for risks.” Id. at 1386.
In Lexington, theunbargained-for risk was that the assignee would directly benefit from any casualty loss to the hotel property, thus providing greater risk to Lexington Insurance Company. Insurance companies well understand the risk that unprofitable property may benefit from a fortuitous casualty loss. In the instant case there are no unbargained-for risks. MetLife is obligated to pay 80% of the usual and customary charge for medically necessary treatment to the insured. The insured, wishing to streamline the cumbersome medical billing process, assigned his benefits to the medical provider, after the loss occurred.
The Florida Supreme Court has recognized that an after loss assignment does not create additional risk to an insurance company. “Lexington concedes that an insured may assign insurance proceeds to a third party after a loss, even without the consent of the insurer.” Id. At FN 3. quoting Better Constr., Inc. v. National Union Fire Ins. Co., 651 So.2d 141, 142 (3rd DCA 1995). Applying Lexington tothe instant case, this Court finds that the alleged assignment of benefits occurred after the loss, and that the insured may assign PIP benefits to a medical provider without the insurer’s consent. Regardless of any non-assignment clause found in the insurance contract, the insured may assign benefits to a medical provider after a loss has occurred. “…(N)either the no-assignment clause nor the no action clause precludes Better from stating a cause of action against National. The first reason in that a provision against assignment of an insurance policy does not bar an insured’s assignment of an after-loss claim.” Better Constr., Inc. v. National Union Fire Ins. Co., 651 So.2d 141, 142 (3d DCA 1995).
This Court further finds that allowing PIP medical benefits to be assigned is harmonious with the well established purpose of the “no fault statutory scheme . . .to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Farren Ivey v. Allstate Insurance Co., 774 So. 2d. 679, 683, 684 (Fla. 2000).
By accepting assignments, the medical provider is able to directly bill and collect the PIP medical benefits thus reducing further disruption to the insured’s full recovery.
In summary, the Court finds that the MetLife assignment language was ambiguous, however, that factor is not dispositive. The controlling opinions and public policy, clearly demonstrate that a PIP insured may assign medical benefits after a loss, regardless of any non-assignable language found in the insurance policy. Defendant’s Motion for Summary Judgment is denied.
The Court further finds that the document attached to the complaint is a valid assignment of benefits and grants Plaintiff’s Motion for Summary Judgment as to Defendant’s Second and Third Affirmative Defense. The Court also finds that Defendant’s First Affirmative Defense is not actually an affirmative defense and grants Plaintiff’s Motion to Strike Defendant’s First Affirmative Defense. Plaintiff’s Motion for Summary Judgment based on Defendant’s failure to timely answer the request for admissions is denied. Defendant shall respond to Plaintiff’s propounded discovery within 30 days from entry of this order. Additionally, Defendant’s Motion for Leave to Amend Responses to Plaintiff’s First Request for Admissions is granted and Defendant shall have 20 days, from entry of this order, to file an amended answer.
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