11 Fla. L. Weekly Supp. 141a
Insurance — Personal injury protection — Standing — Assignment — Validity — Where insured signed direction to pay that specifically provides that it is not an assignment and that it can be revoked only by written notice by certified mail, after filing PIP action medical provider provided insurer with later-signed document assigning benefits, and there is no evidence that first document was revoked in accordance with its terms, documents cancel each other out and there is no basis for standing of medical provider — Summary judgment granted in favor of insurer
CHARLES L. MITZELFELD, DC d/b/a FOUNDATION CHIROPRACTIC CLINIC, (Joy Khamare), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. SS-01-028144 RD. December 16, 2003. Charles E. Burton, Judge. Counsel: Glenn E. Siegel, Kane & Kane, P.A., Boca Raton, for Plaintiff. Heather A. Wallace, Williams, Leininger & Cosby, P.A., West Palm Beach, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on Defendant’s Motion for Final Summary Judgment and the Court having heard argument of counsel, and being fully advised in the Premises, it is hereby:
ORDERED and ADJUDGED that said Motion is hereby GRANTED, as the Plaintiff lacks standing to bring this action.
The Plaintiff brought this suit for personal injury protection (PIP) benefits as an assignee of the insured, Joy Khamare. It was undisputed that on November 14, 1997, the insured signed a “Direction to Pay” with the Plaintiff, which specifically states:
“The authorization for direct payment should not be deemed as an assignment of benefits, in that I, the patient/insured, retain all rights to enforce my insurance contract. The undersigned retains these rights even if the insurance carrier subsequently receives a document or other form or some other writing from the health care providers that there was an assignment of benefits. This language supersedes those forms and in spite of any language to the contrary, there is no assignment of benefits. The only way this direct payment authorization can be revoked or superseded is by subsequent written notice from me or my duly authorized representative by certified mail. Furthermore, this direct payment authorization without assignment of benefits transfers no right, title, or interest in the said contract other than the right to receive direct payment as specified herein above.”
There is no issue of material fact that the November 14, 1997 document does not constitute an assignment of benefits.
After suit was filed, the Plaintiff provided the Defendant with another document signed by the insured, which lists the year as 2000, but does not contain a specific date. This subsequent document contained the following language:
“I, Joy Khamare, hereby authorize Progressive American Insurance to pay directly to Foundation Chiropractic, the medical benefits otherwise payable to me for their services, but not to exceed the charges of those services. I hereby IRREVOCABLY ASSIGN to FOUNDATION CHIROPRACTIC any benefits under any policy of insurance, indemnity agreement, or other collateral source as defined in Florida Statutes for any services or charges provided by FOUNDATION CHIROPRACTIC”
The Plaintiff argued that the language of this second document should control and creates standing, as it was signed subsequent to the first, and the parties (here the Plaintiff and the insured) have the right to modify their agreement. The Plaintiff contends that there can be an oral revocation between the parties and that at a minimum, the intent of the parties to these documents, is a question of fact. There have been no depositions taken, and the Plaintiff requested that the Defendant’s motion be denied without prejudice. The Defendant argued that since the insured did not revoke the November 14,1997 document in accordance with its terms, it remains in effect and there is no assignment of benefits.
The Defendant submitted an Affidavit in Support of its Motion for Summary Judgment, signed by the litigation adjuster, Linda Barron. Ms. Barron’s affidavit confirms that the Defendant only received the “Direction to Pay” during the course of the insured’s treatment, and the Defendant never received, by certified mail or otherwise, written notice from the insured, or any representative of the insured, specifically revoking the document signed on November 14, 1997. Ms. Barron’s affidavit further indicates that the second document, purporting to contain an “assignment of benefits”, was never provided to Progressive prior to the commencement of this action. The Plaintiff did not file any affidavits in opposition to the Motion for Summary Judgment.
The court notes Plaintiff’s objections and contention that the second document containing language of an assignment was signed well after the direction to pay and there should be deemed a question of fact as to the intent of the parties. However, this court finds that the November 14, 1997 document is unambiguous and sets forth the specific terms by which it can be revoked. There was no evidence presented that the 1997 document was revoked in accordance with its terms. In addition, this court finds that, to the extent that the two documents are not consistent, the documents cancel one another out. Therefore, as a matter of law, there is no basis of standing for the Plaintiff.
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