11 Fla. L. Weekly Supp. 570b
Insurance — Personal injury protection — Standing — Assignment — Validity — Motion to dismiss provider’s action against insurer for lack of standing and lack of subject matter jurisdiction on ground that alleged assignments were not assignments as matter of law, but merely directions to pay, denied based on conclusion that language of document containing alleged assignment was ambiguous as to whether insured intended to transfer all rights to make a claim on the policy, or whether insured had reserved some right to make a claim — Motion to dismiss cannot be granted on ground that plaintiff did not incorporate in or attach to the complaint the alleged assignments because defendant did not move to dismiss complaint on this ground — Although motion to dismiss for lack of subject matter jurisdiction may properly go beyond four corners of complaint when it raises solely a question of law, defendant’s motion was unsupported by any affidavit or verification of the documents attached to the motion, and in any event, allegations that insured executed an assignment on behalf of plaintiff was legally sufficient to withstand motion to dismiss — If motion to dismiss were treated as motion for summary judgment, court would also deny that motion given that document containing alleged assignment presents genuine issue of material fact for trier of fact
CRAIG H. LICHTBLAU, M.D., P.A., (Timothy Cranston) Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. South County Civil Division RD. Case No. 2003CC013361. March 2, 2004. Jonathan D. Gerber, Judge. Counsel: Michele Muir, Kane & Kane, Boca Raton, for Plaintiff. Shannon M. Mahoney, George Mahoney Peduzzi, P.A., West Palm Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
THIS CAUSE came before this Court on “Defendant’s Motion to Dismiss Plaintiff’s Complaint with Prejudice Based on Lack of Standing and Lack of Subject Matter Jurisdiction.” This Court has reviewed the motion and the court file, has reviewed the parties’ arguments, and is otherwise fully advised in the premises.
Factual Background
This case arose out of Plaintiff’s Complaint alleging that an insured patient assigned to Plaintiff the insured’s rights to recover personal injury protection benefits from Defendant, and that Defendant has failed to pay those benefits. Plaintiff did not attach to the Complaint copies of the documents upon which Plaintiff claims standing as an assignee. However, Plaintiff produced copies of the documents to Defendant in response to a request for production. The alleged assignments state (with emphasis added here):
INSURANCE AUTHORIZATION — Please read carefully and sign I hereby authorize Craig H. Lichtblau, M.D., P.A. to furnish information concerning my condition and treatment to my insurance carrier and attorney. I assign to my physician all payments for medical services rendered to myself or my dependent. I understand and agree that regardless of my insurance status, I am ultimately responsible for any professional services rendered. In the event that the account becomes overdue and/or delinquent, I understand that a finance charge of 1.5% per month will be assessed in addition to reasonable collection fees, attorney fees, court fees and returned check fees. I will notify you of any changes in my health status or above information.
Defendant’s motion argues that the alleged assignments are not assignments as a matter of law, but merely directions to pay. Therefore, Defendant argues that Plaintiff does not have standing to bring suit against Defendant, and that this Court lacks subject matter jurisdiction over the case. Defendant’s motion further contends that this Court may consider Defendant’s arguments on a motion to dismiss because, “A motion to dismiss based on lack of subject matter jurisdiction may properly go beyond the four corners of the complaint when it raises solely a question of law.” Mancher v. Seminole Tribe of Florida, Inc., 708 So. 2d 327, 328 (Fla. 4th DCA 1998).
Plaintiff responds that this Court should deny Defendant’s motion on procedural grounds because a motion to dismiss is limited to resolving questions of law, and Defendant’s motion requests this Court to resolve a question of fact, that is, the insured’s intent in executing the alleged assignments. Plaintiff further responds Defendant should have filed its motion as a motion for summary judgment, which this Court should deny because there are genuine issues of material fact as to whether the insured assigned his benefits to Plaintiff. Plaintiff also responds that, if this Court treats Defendant’s motion as presenting a question of law, then this Court should deny Defendant’s motion because the documents containing the alleged assignments constitute either express assignments or equitable assignments. Plaintiff lastly argues that, if this Court finds that the documents containing the alleged assignments are not assignments as a matter of law, then this Court should deny Defendant’s motion on the ground of equitable estoppel because Defendant paid benefits to Plaintiff before terminating those payments and causing Plaintiff to file this action.
Procedural Conclusions of Law
The substantive issue which Defendant’s motion presents is whether the documents containing the alleged assignments are assignments as a matter of law. Before addressing that issue, this Court first must address the procedural posture by which the parties have presented the issue.
To begin with, Plaintiff did not incorporate in or attach to the Complaint the alleged assignments. This Court believes that Plaintiff was required to incorporate in or attach to the Complaint the alleged assignments pursuant to Florida Rule of Civil Procedure 1.130(a), which states, in pertinent part, “All . . . documents upon which action may be brought . . . shall be incorporated in or attached to the pleading.” Plaintiff is bringing this action upon not just the underlying insurance policy, but also upon the alleged assignments which purportedly justify Plaintiff’s standing in this action. This Court does not know why Plaintiff did not incorporate in or attach to the Complaint the alleged assignments. Perhaps Plaintiff was concerned this Court might find that the alleged assignments facially negate the allegation that the insured assigned his benefits to Plaintiff, which would justify this Court dismissing the Complaint. See Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240, 1242 (Fla. 2000) (“If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss.”); City of Pembroke Pines v. DeSantis, 816 So. 2d 1198, 1200 n. 1 (Fla. 4th DCA 2002) (“The exhibit became part of the pleading and, because it facially negates the cause of action asserted, it must be considered in determining a motion to dismiss. ”).
If Defendant had moved to dismiss the Complaint on the ground that Plaintiff did not incorporate in or attach to the Complaint the alleged assignments, then this Court would have granted the motion to dismiss with leave to file an amended complaint which incorporated or attached the alleged assignments. See Samuels v. King Motor Co., 782 So.2d 489, 500 (Fla. 4th DCA 2001) (“[T]he opposing party may attack the failure to attach a necessary exhibit through a motion to dismiss. Where a complaint is based on a written instrument, the complaint does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the complaint.”) (citation omitted). In any event, Defendant did not raise in its motion to dismiss Plaintiff’s failure to incorporate in or attach to the Complaint the alleged assignments, so this Court can not grant Defendant’s motion on that ground.
Instead, Defendant, through discovery, obtained the alleged assignments from Plaintiff, and attached copies of the alleged assignments to the motion to dismiss. Normally, this Court can not consider documents beyond the four corners of a complaint in determining a motion to dismiss. See New York State Dept. of Taxation and Finance v. Klein, 852 So. 2d 866, 869 (Fla. 4th DCA 2003) (“A motion to dismiss is not a substitute for a motion for summary judgment, and in ruling on such a motion, the trial judge must consider only the allegations found within the four corners of the complaint.”); Patriotcom, Inc. v. Vega, 821 So. 2d 1261(Fla. 4th DCA 2002) (reversing order of dismissal because trial court went beyond four corners of the complaint and considered documents not attached to complaint in determining motion to dismiss).
However, Defendant’s motion seeks to dismiss the Complaint on Plaintiff’s alleged lack of standing and, therefore, on this Court’s alleged lack of subject matter jurisdiction. See Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So.2d 1350,1352 (Fla. 1993) (“The determination of standing to sue concerns a court’s exercise of [subject matter] jurisdiction to hear and decide the cause pled by a particular party. ”); City of Delray Beach v. Dharma Properties, 809 So. 2d 35, 37 (Fla. 4th DCA 2002) (“A determination that a plaintiff . . . lacked constitutional standing to proceed in federal court constitutes a finding that the court lacks subject matter jurisdiction . . . .”), cause dismissed, 828 So. 2d 385 (Fla. 2002). As Defendant points out, “A motion to dismiss based on lack of subject matter jurisdiction may properly go beyond the four corners of the complaint when it raises solely a question of law.” Mancher v. Seminole Tribe of Florida, Inc., 708 So. 2d 327, 328 (Fla. 4th DCA 1998).
However, Defendant’s motion is unsupported by any affidavit or verification of the documents which Defendant has attached to its motion. Even though Plaintiff likely does not dispute that the documents are authentic copies of what Plaintiff produced in discovery, case law appears to require that Defendant have filed some verification of the documents’ authenticity before this Court considers those documents, because there is nothing of record to indicate that Plaintiff has admitted, or does not dispute, the documents’ authenticity. See McMillan v. Troutman, 740 So. 2d 1227, 1228-1229 (Fla. 4th DCA 1999) (motion to dismiss for lack of jurisdiction required evidentiary hearing); Mancher, 708 So. 2d at 328 (recognizing that trial court may consider affidavits when determining a motion to dismiss based on challenge of subject matter jurisdiction).
If this Court were to disregard the unverified documents which Defendant has attached to the motion to dismiss, then this Court would have to deny Defendant’s motion to dismiss. “A motion to dismiss tests the legal sufficiency of the complaint.” Ramos v. Mast, 789 So. 2d 1226, 1227 (Fla. 4th DCA 2001). “Whether a complaint should be dismissed is a question of law. To rule on a motion to dismiss, . . . all well pleaded allegations are taken as true.” U.S. Project Management, Inc. v. Parc Royale East Development, Inc., 861 So. 2d 74, 75 (Fla. 4th DCA 2003) (citation omitted). “All reasonable inferences must be drawn in favor of the pleader.” Visible Difference, Inc. v. Velvet Swing, L.L.C., 862 So. 2d 753, 754-755 (Fla. 4th DCA 2003). Taking all of Plaintiff’s well-pled allegations as true, and drawing all reasonable inferences in favor of plaintiff, this Court would find that the Complaint is legally sufficient because the Complaint alleges that the insured executed an assignment of benefits on behalf of Plaintiff, and, therefore, the Complaint should not be dismissed.
Substantive Conclusions of Law
Based on the foregoing, this Court does not mean to cause Defendant to go through the exercise of verifying the documents if this Court can address the substantive issue on the face of the documents, assuming that Plaintiff would not dispute the documents’ authenticity.
There is no statute which sets forth the “magic words” which constitute an assignment of PIP benefits. It appears that the only statutory prerequisite is that there is at least a writing which the insured has signed. See Section 627.736(5), Florida Statutes (an insurer providing PIP coverage may pay for services rendered by a provider directly to provider “if the insured receiving such treatment . . . has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured.”); Section 627.735(11), Florida Statutes (as a condition precedent to filing any action for PIP benefits, insurer must be provided with written notice of an intent to initiate litigation, which notice must include “a copy of the assignment giving rights to the claimant if the claimant is not the insured.”).
Case law also does not set forth any “magic words” which constitute an assignment of PIP benefits. Rather, the appellate courts, mainly in dicta, have presented broad descriptions of what constitutes an assignment. See Allstate Insurance Company v. Kaklamanos, 843 So. 2d 885, 892 n.3 (Fla. 2003) (“[W]here an insured does assign PIP benefits to the medical provider, . . . an unqualified assignment removes the insured’s standing to bring a direct action against the insurer, even though the insured remains liable for any medical bills not paid by the insurer.”); Schuster v. Blue Cross and Blue Shield of Florida, Inc., 843 So. 2d 909, 912 (Fla. 4th DCA 2003) (“Only the insured or the medical provider ‘owns’ the cause of action against the insurer at any one time”; documentation containing language which authorized insurer to make payment directly to provider, and which stated that insured would remain financially responsible for any amounts not paid, was unqualified assignment and served to eliminate insured’s standing to bring claim against insurer); Hartford Insurance Co. of the Midwest v. O’Connor, 855 So. 2d 189, 190 (Fla. 5th DCA 2003) (assignment existed where insured authorized insurer to remit payment directly to provider for sums own for insured’s treatment); Oglesby v. State Farm Mutual Insurance Company, 781 So. 2d 469, 470 (Fla. 5th DCA 2001) (assignment existed where provider agreed to perform services based on an unqualified assignment of medical benefits on condition that patient will be ultimately responsible for any medical bills either not covered by policy or simply not paid by insurer); Livingston v. State Farm Mutual Automobile Insurance Company, 774 So. 2d 716, 718 (Fla. 2d DCA 2000) (an assignment “transfers to the assignee all the interest of the assignor under the assigned contract, and . . . the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee . . . .”; question of whether insured has given assignment “depends largely upon whether the insured, after the assignment, retains any risk of loss or any contingent liability that warrants an immediate, separate lawsuit against the insurance company.”); Orion Insurance Company v. Magnetic Imaging Systems I, 696 So. 2d 475, 476 (Fla. 3d DCA 1997) (assignment existed where provider’s customers authorized direct payment of benefits to provider); State Farm Mutual Insurance Company v. Gonnella, 677 So. 2d 1355, 1356 (Fla. 5th DCA 1996) (assignment existed where insured allowed provider to receive direct payment of benefits from insurer); Parkway General Hospital, Inc. v. Allstate Insurance Company, 393 So. 2d 1171, 1172 (Fla. 3d DCA 1981) (assignment existed where insured authorized insurer to make direct payment to hospital of any benefits arising from policy).
The most extensive appellate court analysis of what constitutes an assignment in the PIP context appears in State Farm Fire and Casualty Company v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990). According to the Fifth District Court of Appeal in that case, “An assignment is defined as a transfer or setting over of property or of some right or interest therein, from one person to another. It is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein. . . . Because an unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee.” 556 So. 2d at 812-813 (citations omitted). Applying that definition, the Second District found that an insured’s letter instructing an insurer to pay no more than 20% of policy benefits for medical expenses failed to create an assignment, even if that was the insured’s intent, because the insured did not transfer his interest in the policy to another party, but rather merely reapportioned his own benefits. In contrast, the Second District found that an arrangement between insured and his treating hospital possessed all the classic features of an assignment: “Not only is the document entitled ‘Irrevocable Assignment of Benefits,’ it sets forth the transfer of any proceeds accruing to [the insured] from [the insurer] under the policy stemming from [the insured’s] accident and subsequent hospitalization.” Id. at 813. In USAA Casualty Insurance Co. v. Romm, 712 So. 2d 405 (Fla. 4th DCA 1998), the Fourth District Court of Appeal, in whose jurisdiction this Court resides, quoted and applied the Second District’s definition of assignment on another PIP-related issue.
Contrasting the foregoing cases are those cases in which the appellate courts have set forth what does not constitute an assignment. See Giles v. Sun Bank, N.A., 450 So. 2d 258, 261 (Fla. 5th DCA 1984) (“a mere agreement to pay a debt out of a designated fund . . . does not operate as a legal or equitable assignment since the assignor retains control over the subject matter); Health Application Systems, Inc. v. Hartford Life and Accident Insurance Co., 381 So. 2d 294, 297 (Fla. 1st DCA 1980) (“A mere agreement to pay a debt out of a designated fund does not operate as a legal or equitable assignment, since the assignor retains control over the subject matter. Such an agreement amounts only to a mere promise to pay, and does not meet the test of an intention on the part of the assignor to give, and of the assignee to receive, present ownership of the fund.”) (citations omitted).
In sum, it appears from appellate case law that the test of whether an assignment exists in the PIP context depends upon whether the insured has transferred to the provider all of the insured’s interest under the policy, or whether the insured has reserved some right to make a claim on the policy. The former constitutes an assignment, and the latter constitutes a mere agreement or direction to pay.
Applying that definition to the language of the document containing the alleged assignment in this case, that language being, “I assign to my physician all payments for medical services rendered to myself or my dependent. I understand and agree that regardless of my insurance status, I am ultimately responsible for any professional services rendered,” it appears that the language is ambiguous because the language in no way addresses whether the insured intends to transfer all rights to make a claim on the policy, or whether the insured has reserved some right to make a claim.
“[A]ctions for PIP benefits are based on the insurance contract and thus are governed by contract principles.” Allstate Insurance Company v. Kaklamanos, 843 So. 2d 885, 892 (Fla. 2003). See also Hartford Insurance Co. of the Midwest v. O’Connor, 855 So. 2d 189, 191 (Fla. 5th DCA 2003) (“An assignment is like any other contract . . . .”). “Where a contract is simply silent as to a particular matter, that is, its language neither expressly nor by reasonable implication indicates that the parties intended to contract with respect to the matter, the court should not, under the guise of construction, impose contractual rights and duties on the parties which they themselves omitted.” State Farm Life Insurance Co. v. Florida Asset Financing Corp., 786 So. 2d 1, 3 (Fla. 4th DCA 2000) (citation omitted). To the extent the document containing the alleged assignment is silent as to whether the insured has transferred all rights or has reserved any right to make a claim on the policy, the document is ambiguous as to that matter, and the ambiguity must be resolved by the trier of fact. See North Star Beauty Salon, Inc. v. Artzt, 821 So. 2d 356, 357 (Fla. 4th DCA 2002) (“the existence of the ambiguity is a question of law, and the ambiguity must be resolved as a question of fact.”). As the trier of fact, this Court cannot determine the insured’s intention without further evidence. See Caulkins Indiantown Citrus Co. v. Nevins Fruit Co., Inc., 831 So. 2d 727, 733 (Fla. 4th DCA 2002) (“Generally, where the language of a contract is ambiguous, parol evidence is admissible to explain or clarify the intention of the parties.”).
Because the document containing the alleged assignment in this case presents a question for the trier of fact, and because a motion to dismiss tests the legal sufficiency of the complaint, with all well pleaded allegations are taken as true and all reasonable inferences being drawn in favor of the pleader, this Court can not grant Defendant’s motion to dismiss. To the extent this Court would consider the same record as a motion for summary judgment, this Court also would deny that motion given that the document containing the alleged assignment in this case presents a genuine issue of material fact for the trier of fact. Given these rulings, this Court does not need to address Plaintiff’s responses of equitable assignment or equitable estoppel.
Based on the foregoing, it is ORDERED AND ADJUDGED that “Defendant’s Motion to Dismiss Plaintiff’s Complaint with Prejudice Based on Lack of Standing and Lack of Subject Matter Jurisdiction” is DENIED.
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