11 Fla. L. Weekly Supp. 940a
Insurance — Personal injury protection — Standing — Assignment — Revocation — Insured’s action against insurer — Where assignment by its express terms was irrevocable unless subsequent revocation was in writing, there was no written revocation of assignment prior to insured filing suit, and assignee’s oral relinquishment did not transfer back right to bring suit, insured did not have standing to bring action when complaint was filed — Summary judgment granted in favor of insurer
SAUVEUR GUSTAVE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Collier County, Civil Action. Case No. 03-1813-CC. July 27, 2004. Ramiro Mañalich, Judge. Counsel: Jason R. Himschoot, Vernis & Bowling of Southwest Florida, P.A., Fort Myers. Mark A. Boyle.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard upon Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY’s, Motion for Summary Judgment, and pursuant to Florida Rule of Civil Procedure 1.510, the Court being advised that the parties hereto agree, it is hereby
ORDERED and ADJUDGED as follows:
1. Plaintiff, SAUVEUR GUSTAVE, filed an action for Personal Injury Protection (PIP) benefits against the Defendant on or about September 12, 2003.
2. Plaintiff is the named insured of the subject insurance policy.
3. Plaintiff received medical treatment from Joseph Ferio Francois, D.O., Pharm. D., P.A., for alleged injuries resulting from an automobile accident that occurred on 07/10/2002.
4. The Defendant denied and/or reduced various medical bills from Dr. Francois throughout the course of treatment.
5. The cause of action brought by Plaintiff was only for the unpaid balance of those bills from Dr. Francois that were reduced and/or denied by the Defendant.
6. After the close of the pleadings, the Defendant filed a Motion for Summary Judgment dated April 14, 2004 alleging that the Plaintiff did not have standing to bring the present action because Plaintiff assigned his right to bring a cause of action to Dr. Francois.
7. Defendant attached a copy of an assignment signed by the Plaintiff to the Motion for Summary Judgment and argued that this document transferred the right to bring a cause of action under the policy to Dr. Francois.
8. The assignment states:
“I, SAUVEUR GUSTAVE, hereinafter ASSIGNOR, hereby authorize Progressive Insurance Company to pay directly to Dr. Joseph Ferio Francois, hereinafter ASSIGNEE, the medical benefits otherwise payable to me for their services, but not to exceed the charges of those services. I hereby ASSIGN to ASSIGNEE any benefits or causes of action under any policy of insurance, indemnify agreement, or any other collateral source as defined in Florida Statutes for any service and or charges provided by ASSIGNEE. This ASSIGNMENT OF BENEFITS is given in exchange forASSIGNEE agreeing to await payment from the above named insurance carrier for all payments due and payable pursuant to the ASSIGNOR’s contract of insurance. This ASSIGNMENT OF BENEFITS is IRREVOCABLE unless subsequent revocation is in writing and agreed by both parties.”
9. Plaintiff filed an Affidavit signed by Dr. Francois stating that Dr. Francois orally agreed to relinquish the assignment from Plaintiff prior to this lawsuit being filed.
Based on the above undisputed facts, the Court makes the following findings of law:
a. The Plaintiff transferred his right to bring a lawsuit under the subject insurance policy to Dr. Francois when he signed the document attached to Defendant’s Motion for Summary Judgment.
b. Dr. Francois did not transfer back his right to bring a lawsuit under the policy via his oral relinquishment.
c. The assignment agreed to by Plaintiff and Dr. Francois by its express terms was irrevocable “unless subsequent revocation is in writing and agreed to by both parties.”
d. There was no written revocation by Dr. Francois in favor of Plaintiff prior to the filing of this suit.
e. Accordingly, Plaintiff did not have standing to bring this action when the Complaint was filed and therefore this action by Plaintiff is barred. See Livingston v. State Farm Mut. Auto. Ins. Co., 774 So. 2d 716 (Fla. 2d DCA 2000).
10. The Court finds that there is no genuine issue of material fact and that Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, is entitled to summary judgment as a matter of law.
11. Therefore, for the foregoing reasons, Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY’s, Motion for Summary Judgment is granted.
* * *
