11 Fla. L. Weekly Supp. 827b
Insurance — Personal injury protection — Standing — Assignment — Validity — Document which indicates that medical provider retains lien on any settlement proceeds insured obtains from third-party action is not valid assignment because it lacks consideration — Provider’s agreement to forfeit prepayment or immediate payment from insured is sham consideration where provider ultimately has option of collecting payment from insurer or insured
G. STANFORD PIERCE, D.C., P.A., as Assignee of DARRELL OLIVER, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 03-6602-SC. April 20, 2004. William B. Blackwood, Judge. Counsel: S. Stanley Gipe, Papa & Gipe, P.A., Clearwater, for Plaintiff. David B. Kampf, Ramey, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS BASED ON PLAINTIFF’S FAILURE TO ATTACH A VALID AND ENFORCEABLE ASSIGNMENT OF BENEFITS TO ITS AMENDED COMPLAINT
THIS CAUSE, having come before the Court on March 17, 2004, at 10:00 a.m., and the Court having reviewed the file, heard argument of Counsel, and being otherwise fully advised of the premises, the Court makes the following findings:
1. The document attached to Plaintiff’s Amended Complaint fails to operate as a valid and enforceable Assignment of Benefits.
2. The Court finds that the language in the document indicates that the Plaintiff retains a lien on any settlement proceeds the insured obtains from a third party action.
3. The Court finds that the above listed language precludes the document attached to Plaintiff’s Complaint from qualifying as an Assignment of Benefits because it lacks consideration.
4. Plaintiff has argued that the consideration in this matter is Plaintiff’s agreement to forfeit prepayment or immediate payment from the insured. In lieu of immediate payment Plaintiff has agreed to seek payment from the insured’s PIP carrier and pursue litigation against said PIP carrier if the carrier fails to pay the insured’s bills for services rendered by Plaintiff.
5. The Court rejects Plaintiff’s argument and finds that the alleged consideration argued by Plaintiff is essentially “sham consideration”.
6. The Court finds that ultimately Plaintiff has the option of collecting payment from the carrier or the insured.
7. Therefore, the Court finds there is no consideration flowing from the insured to Plaintiff.
8. The document can not operate as an Assignment of Benefits without consideration. Accordingly, it is
ORDERED and ADJUDGED:
1. Defendant’s Motion to Dismiss is hereby GRANTED.
2. Plaintiff’s Complaint shall be DISMISSED.
3. Plaintiff has no standing to pursue this action.
4. [Editor’s note: Number four was omitted by judge.]
5. Plaintiff shall take nothing from this action; and Progressive shall go hence without day.
* * *
