11 Fla. L. Weekly Supp. 843a
Insurance — Personal injury protection — Standing — Assignment — Validity — Where contradictory documents direct insurer to pay plaintiff medical provider and physician for same medical services, and insured did not understand he was transferring rights, plaintiff does not have valid assignment or standing — Coverage — Conditions precedent — Independent medical examination — Notice of IME sent to insured’s attorney is imputed to insured — Insured’s contradictory reasons for not attending IME, asserting that he could not leave work to attend and that he forgot IME while attending to private family job, makes failure to attend unreasonable and breach of contract — Summary judgment entered in favor of insurer
ROSS INTEGRAL HEALTH CENTER, INC. (Jose A. Lopez), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 01-20832 COCE 56. June 21, 2004. Linda Pratt, Judge. Counsel: Matt Hellman, Matt Hellman, P. A., Plantation. Carlos Cespedes.
FINAL SUMMARY JUDGMENT FOR DEFENDANT PROGRESSIVE EXPRESS INSURANCE COMPANY
THIS CAUSE having come before the Court for hearing on June 15, 2004, on Defendant Progressive Express Insurance Company’s Motion for Final Summary Judgment, and the Court having reviewed the file, the depositions of record, including Defendant’s motion, heard argument of counsel, and being otherwise fully advised in the premises, it is hereby ADJUDGED:
Nature of the Case
The Plaintiff, Ross Integral Health Center, Inc., (“Ross Integral”), brought this action seeking recovery of personal injury protection (“PIP”) benefits under section 627.736, Florida Statutes. By its complaint, Ross Integral alleged Defendant, Progressive Express Insurance Company (“Progressive”), breached an insurance contract and therefore sought benefits for medical treatment rendered to Jose Lopez, the insured, under an automobile policy issued by Progressive.
Progressive moved for summary judgment, asserting that Ross Integral was not entitled to payment of any PIP (or medical payment) benefits because the undisputed evidence of record establishes that Ross Integral did not have a valid assignment of benefits and that the insured breached the insurance policy contract by refusing to comply with the Progressive’s reasonable request to attend an independent medical examination. Additionally, Progressive asserted the insured’s refusal to attend the independent medical examination violated F.S. 627.736(7)(b), thereby relieving Progressive of payments subseqent to said refusal.
Findings of Fact
The facts material to Progressive’s motion for summary judgment are undisputed and established by the pleadings and depositions of record. The material facts are set forth below.
On or about August 27, 2000, the Claimant, Jose Lopez, was involved in a motor vehicle accident.
Progressive’s insurance policy with Jose Lopez contained a $2000 deductible.
Plaintiff was a member of the Blue Star program at the time services were rendered to Jose Lopez. Said Blue Star program was an agreement between the Plaintiff and Defendant regarding payment of fees for billed medical services.
Jose Lopez received medical treatment from the Plaintiff from August 29, 2000 through November 16, 2000.
On first date of receiving medical service, the insured signed a document titled “Assignment of Benefits”, which was attached as Exhibit A to the Complaint.
Subsequent to the insured signing the document titled “Assignment of Benefits”, the insured testified that he did not have an understanding of assigning his rights to the insurance contract to the Plaintiff for medical services rendered by the Plaintiff.
Subsequent to the insured signing the document titled “Assignment of Benefits”, the Plaintiff’s vice president/office manager, Rose Socorro testified that said “Assignment of Benefits” gives the Plaintiff permission to charge the insurance company.
The document titled “Assignment of Benefits” is directed to the Plaintiff, Ross Integral H.C.
On the same date that subject “Assignment of Benefits” was executed by the insured and directed to Ross Integral H.C., the insured also executed an additional document, an “ASSIGNMENT OF BENEFITS” directed to the doctor.
The two doctors employed by Plaintiff are Sergio Delgado and Algidas Krisciusnas. The owner of Ross Integral is Prudencio Socorro.
The insurance contract between Progressive and its insured contained a provision requiring the insured to submit to medical examinations when a person claims coverage under the policy.
On September 27, 2000, notice of an Independent Medical Examination (“IME”) was sent to Jose Lopez and his attorney, Maria Guitian.
Said letters informed Jose Lopez that an IME has been scheduled for October 16, 2000 at 12:00 p.m. Additionally, said letter contained the following: “if the appointment cannot be met we require at least three business days notice in order to reschedule”.
Jose Lopez regularly worked at night, with a starting time of 5:00 p.m. Additionally, on the date of the scheduled IME, October 16, 2000, Jose Lopez received medical treatment from the Plaintiff. However, Jose Lopez did not attend the scheduled IME on October 16, 2000.
Subsequent to the scheduled IME, the insured called Florida Claims Management, the company that scheduled the IME, and stated that he did not attend because he could not leave work.
The insured testified he did not attend the appointment because of a “private job, a family job” that was not related to his primary job, which began at 5:00 p.m. While attending to said “private job”, the insured testified that he “forgot” the scheduled IME appointment.
The IME was not rescheduled. Moreover, on 11/7/00, Defendant sent a notice to the insured, the insured’s attorney and the Plaintiff, that PIP benefits were suspended effective 10/16/00 due to the insured’s unreasonable failure to appear at the IME scheduled on 10/16/00.
In a letter dated 12/6/00, the insured’s attorney stated that the insured forgot the time of the IME that was scheduled for October 16, 2000.
Plaintiff submitted bills for dates of service 9/22/00 through 10/23/00, as listed on Defendant’s Explanation of Reimbursement #2, subsequent to 10/25/00.
Plaintiff submitted bills for dates of service 8/29/00through 9/25/00,as listed on Defendant’s Explanation of Reimbursement #1 and subsequent to 9/26/00,but before 10/16/00. Defendant paid said bill at 80% of the amount billed or the amount of the “Blue Star” agreement between Plaintiff and Defendant.
Plaintiff’s remaining bills for medical services rendered to Defendant’s insured were submitted subsequent to 11/22/00.Conclusions of Law — Invalid Assignment
The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
Only one party can be the holder of a cause of action for specific medical services rendered to an insured by one medical provider, pursuant to Oglesby v. State Farm and Schuster v. Blue Cross.
The Court concludes that the Exhibit A attached to the Complaint is directed to Ross Integral and intructs Progressive to pay Ross Integral for medical services rendered to the insured. Exhibit B is directed to a Doctor and instructs Progressive to pay the Doctor for the same medical services indicated in Exhibit A. Since Exhibit A and B contradict one another as to who should receive payment, and the insured did not understand he was transferring rights, the insured did not transfer his rights to his insurance contract to Ross Integral. As such, Ross Integral does not have a valid assignment of benefits or standing to pursue this cause of action, as that right remains with Jose Lopez.
Conclusions of Law — Breach of Contract
The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
Florida Statute 627.736(7)(b) states in pertinent part:
If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.
The plain and ordinary meaning of reasonable means agreeable to reason or possessing sound judgment. Reason is a statement offered in justification or a sufficient ground of explanation or of logical defense.
Notice of the IME is imputed, through the law of agency, by sending notice of said IME to the insured’s attorney. As such, the insured received additional notice through his attorney of the scheduled IME of October 16, 2000.
The insurance contract between Progressive and its insured contained a provision requiring the insured to submit to medical examinations when a person claims coverage under the policy.
The Court concludes that the insured’s contradictory explanations for not attending the IME makes his failure to attend unreasonable, and as such violative of F.S. 627.736(7)(b); and said failure to attend was a breach of the insured’s contract with Defendant, said breach occurring on October 16, 2000. Additionally, pursuant to U.S. Security v. Silva, 693 So.2d 593 (Fla. 3rd DCA 1997), this Court concludes that Defendant has made all required payments for medical services rendered regarding Plaintiff’s submission of bills prior to the breach of contract on October 16, 2000, pursuant to F.S. 627.736.
Based upon the foregoing analysis, the Court concludes that Progressive is entitled to final summary judgment in this case. Specifically, the information before this Court shows that there is no genuine issue as to any material fact and that Progressive is entitled to a judgment as a matter of law.
Final Judgment
IT IS HEREBY ADJUDGED that Plaintiff, Ross Integral Health Center, Inc. (a/a/o of Jose Lopez), take nothing by this action and Defendant, Progressive Express Insurance Company, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax fees and costs.
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