11 Fla. L. Weekly Supp. 47a

Insurance — Personal injury protection — Standing — Assignment — Medical provider that did not have valid assignment of benefits executed by insured at time PIP suit was filed did not have standing to maintain suit — Attorney’s fees — Justiciable issues — Attorney’s fees are awarded to insurer where medical provider pursued litigation despite knowledge of its lack of standing

UNITECH DIAGNOSTICS, INC., (MARIA MACIAS), Plaintiff(s), v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-3730 SP 26. October 29, 2003. Ellen Sue Venzer, Judge. Counsel: Robert J. Cooney, Miami, for Plaintiff. Rafael I. Katz, Tolgyesi, Katz, Hankin & Katz, Hollywood, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE having come to be heard upon Defendant’s Motion for Summary Judgment, and the Court having considered the record, the Defendant’s arguments, the Plaintiff’s failure to appear at the duly noticed hearing, and otherwise being duly advised in the premises, this Honorable Court finds as follows:

1. Plaintiff, UNITECH DIAGNOSTICS, INC., claims to be a provider of MRI services.

2. Defendant, ALLSTATE INDEMNITY COMPANY (“ALLSTATE”), is a personal injury protection insurer.

3. At all times material to this case, the insured, Maria Macias, was insured by Defendant under a policy of insurance which provided personal injury protection benefits in accordance with Florida Statute §627.736.

4. Defendant’s policy of insurance with Maria Macias requires that Defendant pay eighty percent (80%) of the reasonable charges for medically necessary services its insured incurs as the result of injuries which arise from the ownership, maintenance or use of an automobile.

5. Plaintiff alleges that it provided MRI services to Defendant’s insured, Maria Macias, on or about August 20, 2001.

6. Plaintiff billed Defendant $2,750.00 for said MRI services.

7. Florida Statute §627.736(5)(b)(5) limits the amounts that personal injury protection insurers and insureds can be charged for MRI services. This limitation is based upon the Medicare Fee Schedule, Part B.

8. Plaintiff claims that Florida Statute §627.736(5)(b)(5) became effective on October 1, 2001.

9. Defendant maintains that this provision became effective on June 19, 2001, the date that Governor Bush signed the act into law.

10. Accordingly, Allstate paid Plaintiff for the MRI services allegedly provided to its insured at the rate mandated by Florida Statute §627.736(5)(b)(5) and the terms of the policy of insurance.

11. Allstate paid Plaintiff eighty percent of the allowable amount pursuant to the aforementioned fee schedule.

12. Plaintiff filed the instant suit to recover the difference between the amount Allstate paid and the amount Plaintiff claims is due, eighty percent of Plaintiff’s full $2,750.00 charge.

13. Plaintiff claims to have standing pursuant to an assignment of benefits executed in its favor by Defendant’s insured, Maria Macias.

14. Plaintiff failed to attach an assignment of benefits to its Complaint.

15. The Plaintiff submitted its bill to Defendant on a HCFA 1500 form.

16. Box 27 on the HCFA 1500 form provides a space to check off whether the medical service provider accepts an assignment of benefits from the insured. The HCFA 1500 form upon which Plaintiff submitted its bill to Defendant indicates in box 27 that Plaintiff did not accept an assignment from Allstate’s insured, Maria Macias.

17. Moreover, Defendant attached a document in support of its Motion for Summary Judgment and marked it as “Exhibit A.” This document is entitled “UNITECH DIAGNOSTICS, INC. DIRECT PAYMENT AUTHORIZATION WITHOUT ASSIGNMENT OF BENEFITS AND/OR REVOCATION OF ASSIGNMENT” (emphasis in original).

18. This document is printed on Plaintiff’s own letterhead and contains the notarized signature of Maria Macias, the Plaintiff’s patient and the Defendant’s insured.

19. This document states, in pertinent part, that it:

should not be deemed an assignment of benefits, in that [the patient, Maria Macias] retain[s] all rights to enforce [the] insurance contract” and that the patient “retains these rights even if the insurance carrier subsequently receives a document of [sic] form or some other writing from the healthcare providers that there was an assignment of benefits. This writing supersedes those forms and in spite of any language to the contrary, There is no assignment of benefits. [sic] . . . Furthermore, this direct payment authorization without assignment of benefits transfers no right, title, or interest in the said contract other than the right to receive direct payment as specified herein (emphasis in original).

20. It is black letter law that standing is a prerequisite to seeking legal redress. Florida Rule of Civil Procedure 1.210(a) provides that in order to bring a civil action an individual must have “an interest in the subject of the action and in obtaining the relief demanded.”

21. In order to have an interest in the subject of the litigation, and thereby have standing, the Plaintiff must have an assignment of benefits executed in its favor by the personal injury protection insured. An assignment is defined as “a transfer or setting over of property or of some right or interest therein, from one person to another. It is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein.” State Farm Fire and Casualty Company v. Ray, 556So.2d 811 (Fla. 5th DCA 1990), citing Assignments § 1, 4 Fla. Jur. 2d (1978).

22. Thus, an assignment of benefits under a of insurance would render the assignee a beneficiary under the contract of insurance, and enable the assignee to enforce payments or the performance of an obligation under the contract. Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965).

23. Without an assignment of benefits, Plaintiff does not have standing to file this suit or seek redress in this Court.

24. Further, “[t]he determination of standing to sue concerns a court’s exercise of jurisdiction to hear and decide the cause pled by a particular party.” Rogers & Ford Construction Corporation v. Carlandia Corporation, 626 So.2d 1350, 1352 (Fla. 1993). In order for a court to have subject matter jurisdiction over a matter, the Plaintiff must have standing to file suit, and must have had standing at the time it filed its original complaint.

25. Standing cannot be cured after suit has been filed. “[i]f a plaintiff had no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by the acquisition or accrual of one while the suit is pending.”¹ Fortune Insurance Company v. Lugo, 7 Fla. L. Weekly Supp. 435b (Fla. 11th Cir. Ct., April 4, 2000), citing Meredith v. Long, 119 So. 114, 115 (Fla. 1928).

26. Plaintiff did not have a valid assignment of benefits executed by the Defendant’s insured at the time suit was filed. Therefore, Plaintiff did not have standing to maintain this action at the time it filed the instant lawsuit.

27. Defendant also filed a Motion for Attorney’s Fees and Costs Pursuant to Florida Statute §57.105.

28. Defendant advised Plaintiff of its lack of standing, yet Plaintiff continued with this litigation, forcing Defendant to go forward with the instant Motion for Summary Judgment.

29. Therefore, Plaintiff pursued this litigation despite the knowledge that its claim was not supported by the material facts necessary to establish the claim.

30. Defendant has been forced to expend money for attorney’s fees and costs in its defense of this matter.

31. This Honorable Court finds that Plaintiff did not have standing to file the instant suit.

32. In addition, the Court finds that Plaintiff’s claim is not supported by the material facts necessary to establish the claim, and that the Plaintiff or its attorney knew or should have known of the deficiency.

Based upon the foregoing facts, it is hereby ORDERED AND ADJUDGED that:

1. Defendant’s Motion for Summary Judgment is hereby GRANTED.

2. Defendant’s Motion for Attorney’s Fees and Costs Pursuant to Florida Statute §57.105 is hereby GRANTED.

3. This Court reserves jurisdiction to determine the amount of fees and costs to which Defendant is entitled.

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¹Florida Rule of Civil Procedure 1.050 provides that, “[e]very action of a civil nature shall be deemed commenced when the complaint or petition is filed.”

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