12 Fla. L. Weekly Supp. 957b
Insurance — Personal injury protection — Demand letter — Insured who had assigned rights to medical provider and did not revoke assignment prior to serving pre-suit demand letter did not have right or authority to serve letter
CAROLYN SCALES, (as parent and/or guardian of Elizabeth Scales), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2004-SC-5827, Division O. July 19, 2005. Ronald P. Higbee, Judge. Counsel: David G. Candelaria, Farah & Farah, P.A., Jacksonville, for Plaintiff. Glenn S. Banner, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY DISPOSITION
THIS CAUSE, having come before the Court on June 17, 2005, on Defendant’s Motion for Final Summary Disposition, and the Court having heard arguments of counsel, reviewed the pleadings and motions and being otherwise advised in the premises, it is,
ORDERED and ADJUDGED as follows:
1. Defendant’s Motion for Final Summary Disposition is GRANTED.
2. The issue before the Court was whether an insured has the right to serve a demand letter pursuant to Florida Statute § 627.736(11), once the insured assigns their rights to a medical provider in exchange for medical services.
3. The insured did not revoke the previous assignments to the medical providers prior to serving the Defendant with its presuit demand letter.
4. The Plaintiff did not have any right or authority to serve the presuit demand letter dated April 27, 2004, and received by Defendant on April 30, 2004, because at that time, the medical providers “owned” the cause of action. Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). Once an insured assigns his rights to PIP benefits in exchange for medical services, the assignor has no right to make any claim on the contract. State Farm Fire & Cas. Co. v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990).
5. There remain no genuine issues as to any triable facts, the Plaintiff did not “own” the cause of action at the time she served Defendant with her presuit demand letter. The Plaintiff is an invalid claimant resulting in the demand letter at issue being an invalid demand letter and not satisfying the statutory conditions precedent of Florida Statute § 627.736(11).
IT IS HEREBY ADJUDGED that Plaintiff, CAROLYN SCALES, as parent/guardian of Elizabeth Scales, take nothing by this action and Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
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