11 Fla. L. Weekly Supp. 413a

Insurance — Personal injury protection — Standing — Assignment — Validity — Agreement that transfers to medical provider an insured’s legal right to payment of PIP benefits is valid assignment

SALVATORE D. LARUSSO, (as assignee for Joan Nelson), Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 02-16238 (05). Richard D. Eade, Judge. Counsel: Robert C. Buschel, Ft. Lauderdale. Matt Hellman, Plantation.

ORDER

THIS CAUSE comes to the Court on Appellant’s appeal of the trial court’s final order of dismissal, with prejudice. The Court having heard arguments of counsel, reviewed the record and otherwise duly being advised in the premises finds and decides as follows:

Appellant, Larusso, seeks to enforce a purported assignment of personal injury protection (PIP) insurance benefits made by the insured, Nelson. Nelson was injured in an automobile accident on July 2, 1997. The insured sought treatment for her injuries from Larusso. Nelson intended to use the PIP benefits to pay for the treatment. To effect this intent Nelson signed a form entitled “Assignment of Benefits.” Appellee, Progressive American Insurance Co. (Progressive), refused to make payment;¹ Larusso sued for payment. On June 25, 2002, the trial court granted Appellee’s motion for dismissal, with prejudice. This appeal followed. The issue, here, is whether trial court erred in granting the dismissal based on an invalid assignment.

A review of a trial court’s dismissal order is de novo. Rittman v. Allstate Ins. Co., 727 So. 2d 391 (Fla. 1st DCA 1999). In addition, a review of the validity of an assignment is a question of law. Oper v. Air Control Products, Inc. of Miami, 174 So. 2d 561 (Fla. 3d DCA 1965).

The critical test of whether an agreement constitutes an assignment is whether the debtor would be justified in paying the assignee. Trak Microwave Corp. v. Medaris Management, Inc., 236 So. 2d 189 (Fla. 4th DCA 1970). Here, as a matter of law, the language of the assignment creates an assignment. See Fla. Stat. § 627.736(5)(a); Giles v. Sun Bank, N.A., 450 So. 2d 258 (Fla. 5th DCA 1984). The assignment transfers to Appellant, Nelson’s legal right to payment of PIP benefits.

Accordingly, the trial court’s order is REVERSED and the cause is REMANDED for further proceedings consistent herewith.

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¹In the instant appeal, the reasonableness, or not, of the treatment is not at issue.

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