11 Fla. L. Weekly Supp. 155a
Insurance — Personal injury protection — Standing — Assignment — Validity — Where only benefit being assigned by purported assignment is payment, document amounts to no more than directive to pay — Where clear and unambiguous language of document attached as exhibit to complaint, and on which medical provider relies to establish standing to sue, does not as matter of law amount to assignment of benefits, action may be disposed of in motion to dismiss
NILE R. LESTRANGE, M.D. (a/a/o Jennifer Dipanni), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-3982 COSO 62. December 1, 2003. Robert W. Lee, Judge. Counsel: Russel Lazega, North Miami, for Plaintiff. Lynne M. French, Adams, Blackwell & Diaco, P.A., North Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came before the Court on November 7, 2003 for hearing of the Defendant’s Motion to Dismiss, and the Court’s having reviewed the Motion and relevant legal authorities, heard argument of counsel, and been sufficiently advised in the premises, finds as follows:
Findings of Fact. This is a PIP case. On or about February 1999, Jennifer Dipanni purportedly executed a document which is entitled “Assignment of Insurance Benefits.” Underneath this title, the following sentence appears: “I hereby authorize payment to be made directly to Dr. Nile R. Lestrange all benefits which may be due and payable under insurance coverage for the named patient.”
On June 20, 2003, Dr. Lestrange filed this action to recover PIP benefits. As proof of standing, it attached as an exhibit a copy of the “Assignment of Benefits” discussed above. The Plaintiff alleges that this document gives the Plaintiff standing to pursue payment of these benefits (Complaint, ¶7). On September 5, 2003, the Defendant filed its Motion to Dismiss, claiming that Dr. Lestrange does not have standing to bring this action because he was not assigned anything other than payment. Rather, Progressive claims that the “assignment” is no such thing, but rather merely a directive to pay which provides no standing to sue on behalf of an insured. At the hearing, Dr. Lestrange further argued that even if the “assignment” did not clearly provide the right to sue, at a minimum it created an ambiguity as to the parties’ intent, which should not be disposed of in a motion to dismiss.
Conclusions of Law. The Court’s analysis begins with the general proposition that an insured in a PIP case cannot generally sue the insurer if it has executed an assignment of benefits in favor of a provider. Hartford Ins. Co. of Midwest v. O’Connor, 855 So.2d 189, 191 (Fla. 5th DCA 2003). The distinction is of critical importance, because an insurer can be penalized if it improperly pays the wrong party. See State Farm Fire & Cas. Co. v. Ray, 556 So.2d 811, 813 (Fla. 5th DCA 1990).
The Court has also carefully reviewed the following cases: Raymond D. Clites, D.C., P.A. v. Metropolitan Property & Casualty Ins. Co., 10 FLW [Fla. L. Weekly] Supp. 888, 889 (13th Cir. Ct. 2003); Orthopaedic Associates of South Broward, P.A. v. Progressive Express Ins. Co., 10 FLW [Fla. L. Weekly] Supp. 565 (Broward Cty. Ct. 2003); and A-First Choice Healthcare Systems, Inc. v. State Farm Mutual Automobile Ins. Co., Order Granting Defendant’s Motion to Dismiss, Case No. 03-5439 COSO-62 (Broward Cty. Ct. 2003). Each of these cases addresses the difference between an assignment of benefits and a mere directive to pay. When an “assignment” does nothing more than direct that payments be made to a provider, it is not an “assignment of benefits” under the statute. The distinction appears to be fairly narrow, however. If language of an assignment truly assigns “benefits,” it is no longer just a mere directive to pay. See Clites. In the instant case, the language of the assignment uses the word “benefits.” A complete reading of the assignment language, however, reveals that the only “benefit” being assigned is payment. As such, the instant case is like the assignment language of Orthopaedic Associates in which the trial court held that the language amounted to no more than a mere directive to pay.
The final question for the Court then is whether this action may be disposed of in a motion to dismiss, or whether the mere fact that the provider included the language concerning an assignment of benefits is sufficient to withstand the motion and instead require that Progressive seek summary judgment. In deciding whether a motion to dismiss should be granted, a court is not limited solely to the four corners of the complaint; the court may also consider any attachments incorporated by the plaintiff into the complaint. Scovell v. Delco Oil Co., 798 So.2d 844, 845 (Fla. 5th DCA 2001). This is not a case in which the insurer is claiming that another assignment document exists; in the instant case, the insurer attached the document as an exhibit to the complaint which purports to provide it standing. Cf. Hartford Ins. Co., supra (in which the insured brought suit, claiming that the insurer had reassigned him benefits); Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999) (in which insured made no reference in complaint to assignment). Both the First and Fifth DCAs appear to agree, albeit in apparent dicta, that the procedural tool of a motion to dismiss can be used to determine standing to sue under the PIP statute. See Garcia v. State Farm Mutual Automobile Ins. Co., 766 So.2d 430, 432 (Fla. 1st DCA 2000). In the instant case, the clear and unambiguous language of the document attached as an exhibit to the complaint, and on which Dr. Lestrange relies to establish his standing to sue, does not as a matter of law amount to an assignment of benefits. The Court agrees with the Defendant’s position that no matter how you look at it, the document is nothing more than a directive to pay. The clear and unambiguous language of the document clearly fails the duck test. See The Florida Bar v. Neiman, 816 So.2d 587, 599 (Fla. 2002) (if it walks like a duck, etc.).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is GRANTED.
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