11 Fla. L. Weekly Supp. 204a
Insurance — Personal injury protection — Standing — Assignment — Validity — Document stating insured assigns benefits payments to medical provider clearly assigns benefits to provider and is not rendered ambiguous by additional provision directing insurer to make direct payments to provider — Taking of live testimony at summary judgment hearing, in effort to resolve alleged ambiguity in assignment, constitutes reversible error even in absence of contemporaneous objection — Order granting summary judgment in favor of insurer reversed
CARE THERAPY & DIAGNOSTIC, INC., (as Assignee of Lisa Vilches), Plaintiff/Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 13th Judicial Circuit (Appellate-Civil) in and for Hillsborough County. Case No. 03-620. Division X. L.C. Case No. 01-27851-SC. December 22, 2003. Robert J. Simms, Judge. Review of a final order of the County Ct., Hillsborough County. Counsel: Timothy Patrick, Tampa, for Appellant. Valeria Hendricks, Davis & Harmon, P.A., Tampa, for Appellee.
Appellant appeals a judgment of the trial court which determined that it did not have standing to sue pursuant to an alleged assignment of benefits. We review the matter de novo, Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001), and we reverse the decision of the trial court. The facts are as follows.
Lisa Vilches, the insured, sought treatment from Appellant because of injuries she sustained in an automobile accident. Ms. Vilches was covered by an automobile insurance contract with Progressive. Prior to receiving treatment, she signed a document which Appellant maintains was an assignment of her rights and benefits under her policy to Appellant. When a dispute as to payment arose, the healthcare provider filed suit, claiming to be the insured’s assignee.
Appellee moved for summary judgment asserting that Appellant lacked standing to sue because the alleged assignment was not an assignment, rather, it was a direction to pay benefits directly to the provider. The trial court granted the Motion for Summary Judgment and entered a final judgment against Appellant. This appeal followed.
The assignment is entitled and provides in pertinent part as follows:
ASSIGNMENT OF INSURANCE BENEFITS & DIRECTIVE TO INSURANCE CO.
I the insured, hereby assign benefits payments under policy # 25492999-1-02962 to Care Therapy & Diagnostic Service for services provided to the patient. The insurance company is hereby directed to make appropiate [sic] benefit payment directly to Care Therapy & Diagnostic Service.
I understand that if my insurance company/third party payor refuses payment, or does not pay in full, I am responsible for all outstanding charges owed to Care Therapy & Diagnostic Service.
Whether an ambiguity in a contract exists is a matter of law for the trial court to determine. See Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So. 2d 564, 565-566 (Fla. 1st DCA 2000). Having determined that the document was ambiguous, the trial court judge took testimony in an effort to clarify the ambiguity. Appellant contends that the agreement is not only clearly an assignment, but that the trial court erred in taking testimony in an attempt to determine whether the parties intended an assignment or a direct payment authorization.
The Court finds no ambiguity, either latent or patent. See Waksman Enterprises, Inc. v. Oregon Properties, Inc., 28 Fl[a]. L. Weekly D2229 (Fla. 2d DCA September 14, 2003). The language under review clearly assigns benefits to Appellant. The additional provision directing the insurer to make direct payments to Appellant is totally consistent with the assignment of benefits and does not render the assignment ambiguous. See Superior Ins. Co. v. Libert, 776 So.2d 360 (Fla. 5th DCA 2001).
Additionally, the summary judgment was erroneously entered based on the procedure employed by the trial court. While the court, in considering a motion for summary judgment may require supplemental affidavits or other discovery such as depositions and interrogatories (Fl. R. Civ. P. 1.510(e) & (f)), here, the trial judge took testimony to resolve the alleged ambiguity. Presenting live testimony at a summary judgment hearing is impermissible. Campbell-Settle Pressure v. David M. Abel Constr. Co., 395 So.2d 247, 248 (Fla. 3d DCA 1981). This rule is so basic that the taking of live testimony at a summary judgment hearing constitutes reversible error, even in the absence of a contemporaneous objection. Plescow v. Gulf States Zayer, Inc., 350 So. 2d 1147 (Fla. 3d DCA 1977); see also Orange Lake Country Club, Inc. v. Levin, 645 So.2d 60, 62 (Fla. 5th DCA 1944).
It is therefore ORDERED that the decision of the trial court is REVERSED. (Barton and Isom, JJ., concur.)
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