11 Fla. L. Weekly Supp. 825a
Insurance — Personal injury protection — Standing — Assignment — Validity — No merit to argument that insurer which paid overdue medical bills was not required to pay medical provider’s postal costs requested in demand letter and 10% penalty because provider had not submitted valid assignment with demand letter — Document attached to demand letter that assigns “any and all benefits of insurance . . . and state statutes” is valid assignment despite insured’s agreement to pay non-covered or deductible expenses
ST. AUGUSTINE PHYSICIANS ASSOCIATES, as assignee of HEATHER BARRA, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2003-1811-SC, Division C. June 28, 2004. Timothy R. Collins, Judge. Counsel: Ellen C. Pappas. D. Scott Craig, Farah, Farah & Abbott, P.A., Jacksonville.
ORDER GRANTING FINAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF, AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on June 4, 2004, and the Court having heard the argument of counsel and being otherwise fully advised in the premises, the Court finds as follows:
A. On September 16, 2003, Plaintiff submitted two properly completed “demand letters” to Defendant, pursuant to Section 627.736(11), Florida Statutes (2003). Plaintiff sought unpaid No-Fault Benefits for dates of service May 23, 2003 and August 6, 2003. Defendant received these letters, via certified mail, on September 22, 2003.
B. On September 25, 2003, during the statutory 15 day time period, Defendant paid the medical billing included in Plaintiff’s demand letters. Because payment was overdue, Defendant included 6% statutory interest on this payment, pursuant to Section 627.736(4)(c), Florida Statutes, which requires that all overdue payments include interest established under Section 55.03, Florida Statutes. However, the Defendant did not reimburse Plaintiff’s postal costs of $9.30, requested in the demand letters, or pay the 10% penalty in the amount of $12.48, as required by Section 627.736(11), Florida Statutes.
C. Defendant defended the Plaintiff’s Motion for Summary Judgment by arguing that they were not required to pay $21.78 ($9.30 in postal costs and $12.48 penalty) because the Plaintiff did not comply with Section 627.736(11), Florida Statutes. The Defendant argued that the Plaintiff had not submitted a “valid assignment.”
D. Plaintiff’s demand letters included a copy of a document entitled “Release, Assignment & Provider’s Lien”, executed by Plaintiff’s patient, Heather Barra. This document reads, in pertinent part:
“The undersigned patient hereby assigns any and all benefits of insurance under the automobile and/or health and/or casualty insurance (hereinafter collectively called “Insurance”) from any and all claims now or in the past with the above named Insurance Company to St. Augustine Physicians Associates, Inc.” for services rendered to the undersigned patient and covered by Insurance coverage under the insured’s policy and in accordance with state statute(s).” (Emphasis added.)
E. Defendant argues that this language was insufficient to constitute an assignment of benefits, and that Plaintiff’s patient retained her right to sue Defendant, in the event of a dispute over No-Fault benefits. If Defendant is correct, then its Motion for Summary Judgment must be granted, as Plaintiff is required to submit a valid assignment of benefits, with the demand letter, pursuant to Section 627.736(11), Florida Statutes, as a condition precedent to filing suit.
F. This Court finds that this document is a valid assignment of benefits. There is no ambiguity in the language, which would require testimony to determine the intent of the parties in executing this document (see Care Therapy & Diagnostic, Inc. v. Progressive Express Ins. Co., 9 Fla. L. Weekly Supp. 631c (Fla. 15th Circuit Appellate, Palm Beach Cty., 2002). The “assignment” which is at issue in this case is not a “direction to pay” as discussed in some of the cases cited by the Defendant. This is an assignment of “any and all benefits of insurance . . . and state statute(s),” and the insured’s agreement to pay non-covered or deductible expenses does not prevent the medical provider from owning the cause of action against the insurer. Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So.2d 469 (Fla. 5th DCA, 2001). “As a general rule, if an insured has assigned her right to receive personal injury protection (PIP) benefits to a health care provider, the insured may not file a lawsuit to collect the assigned benefits.” Livingston v. State Farm Mutual Automobile Ins. Co., 774 So.2d 716, 717 (Fla. 2nd DCA, 2000); cited and approved in Allstate Insurance Company v. Kaklamanos, 843 So. 2d 885, 893 fn3 (Fla. 2003). This Court finds that the “Release, Assignment & Provider’s Lien” validly assigned Heather Barra’s No-Fault benefits to Plaintiff, giving Plaintiff standing to seek the unpaid benefits from Defendant.
Therefore, it is ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Final Summary Judgment is hereby granted.
2. Defendant’s Motion for Final Summary Judgment is hereby denied.
3. Plaintiff shall recover from Defendant the sum of $21.78 in postal costs and statutory penalty, within thirty (30) days of the date of entry of this Order, for which sum let execution issue. Plaintiff is entitled to reasonable attorneys’ fees and costs, as the prevailing party in this action.
4. The Court retains jurisdiction, consistent with this Order.
* * *
