12 Fla. L. Weekly Supp. 520a
Insurance — Personal injury protection — Small claims — Application of Rules of Civil Procedure — Notice — Medical provider waived right to raise on appeal issue of trial court’s failure to enter order providing that rule 1.140(c) would apply in small claims PIP action before granting motion for judgment on pleadings where parties stipulated that insurer would be filing motion to dismiss based on lack of standing, medical provider was served with notice that motion for judgment on pleadings would be argued at hearing, motion for judgment on pleadings was filed more than six weeks before hearing, and provider failed to object to application of rule — Standing — Assignment — Where ambiguity in document that states it constitutes assignment of benefits not assignment of cause of action is patent, trial court correctly confined review to document itself without allowing extrinsic evidence to interpret ambiguity and correctly determined that no factual dispute existed — Construing conflicting statements in document against provider as drafter of document, trial court correctly determined that document did not create valid assignment — Provider’s pleading regarding equitable assignment was sufficient to survive motion for judgment on pleadings where complaint alleged insured signed document intending to assign benefits to provider, which was created in consideration of provider’s providing medical services, forgoing its right to immediately collect payment from insured, and performing tasks commensurate with litigating claim against insurer
CENTRAL IMAGING SERVICES, INC., on behalf of Alexander, Sherry, Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 02-10174-CI-88B. UCN 522002CA010174XXCICI. October 6, 2004. Appeal from Final Judgment, Pinellas County Court, Small Claims Division, Judge Walter Fullerton. Counsel: Paul Puzzanghera, St. Petersburg, for Appellant. Valeria Hendricks, Davis & Harmon, P.A., Tampa, for Appellee.
ORDER AND OPINION
(DAVID A. DEMERS, J.) This matter is before the Court on appeal from the Final Order entered November 8, 2002, by the Small Claims Division of the Pinellas County Court, granting Appellee Progressive Express Insurance Company’s (Progressive) Motion for Judgment on the Pleadings.1 Having reviewed the briefs, the record and pertinent legal authority, this Court reverses the trial court’s ruling as set forth below.
Appellant Central Imaging Services (Central) commenced this action in June of 2002 by filing a Complaint seeking payment of Personal Injury Protection (PIP) benefits for services rendered to Sherry Alexander, Progressive’s insured. Central alleged that it had entered into an assignment agreement with Alexander and attached a copy of this alleged agreement to the Complaint (Assignment Form). Additionally, Central alleged that an equitable assignment existed through the actions of itself and Alexander.
The Assignment Form provides, in pertinent part, that Alexander “authorize[s] CENTRAL IMAGING to prosecute said action and collect legal expenses as they [sic] see fit,” and that the form “is to act as assignment of my rights and benefits to the extent of the services provided.” However, the form also states that “THIS DOCUMENT CONSTITUTES AN ASSIGNMENT OF BENEFITS NOT AN ASSIGNMENT OF CAUSE OF ACTION” (bold and capitals in original) (hereinafter “capitalized language”). Further, it reads, “this Lien and Authorization does not constitute any consideration for the provider to await payments and they [sic] may demand payments from me immediately upon rendering services at their [sic] option.”
In its Answer, Progressive claimed, inter alia, that Central lacked standing to file the suit because no valid assignment of benefits existed. Further, on September 6, 2002, the parties filed a Stipulation to Waive Appearance, which stated in part that “Defendant will file a motion to dismiss based on Standing2 . . . prior to the next re-set Pretrial Conference, so that said matter[s] can be heard by the Court on that date.”
On September 19, 2002, Progressive filed its Motion for Judgment on the Pleadings and/or Summary Disposition3 based upon alleged lack of standing, citing the capitalized language. In response, Central filed a Motion to Stay on the basis that a case addressing the same Assignment Form was pending before this Court. See Gainesville MRI Center v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 573a (Fla. 6th Cir. Ct. June 9, 2003). The Gainesville MRI Center appeal happened to be from the same trial judge hearing the present matter, who had determined that the Assignment Form had not conferred standing upon the medical provider.
On October 17, 2002, Progressive served Central with a Notice of Hearing set for November 6, 2002, on the matters of both its Motion for Summary Judgment and its Motion for Judgment on the Pleadings. At this hearing, the trial court also heard argument regarding the Motion to Stay, which Progressive contended was unwarranted because the present case involved a different plaintiff than the one in Gainesville MRI Center. In considering the stay and its determination of no assignment in Gainesville MRI Center, the trial court observed that the present case was “going to be either appealed or stayed until the first appeal is decided.” At no time prior to or during this hearing did Central argue that it would be inappropriate for the trial court to rule on Progressive’s Motion for Judgment on the Pleadings under the Small Claims Court Rules.
Central contends that the Final Judgment should be reversed because (1) the court granted Progressive’s motion with no prior notice that it would be proceeding under the Rules of Civil Procedure, thus denying Central due process; (2) the Assignment Form attached to the Complaint was sufficient at the very least to raise a factual question concerning a direct assignment; and (3) even if no direct assignment existed, Central’s pleading of equitable assignment was sufficient to survive a motion for judgment on the pleadings.
Turning first to the notice issue, this Court notes that the Small Claims Rules do not provide for a motion for judgment on the pleadings. Rule 7.020(c), however, provides, “In any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion.” Fla. Sm. Cl. R. 7.020(c).
Here, it is undisputed that no order was ever entered by the trial court providing that Fla. R. Civ. P. 1.140(c), which governs judgments on the pleadings, apply to this matter. Progressive, however, contends that Central waived any objection to the application of this rule by failing to raise any challenge at the trial level despite ample notice that the motion was under review by the trial court and ample opportunity to object.
This Court has been unable to locate any opinions specifically dealing with the waiver of an objection to the application of a Rule of Civil Procedure in a small claims matter. However, as a general rule, objections are waived if they are not “raised initially in the trial court by the presentation of a specific motion or objection at an appropriate stage of the proceedings.” Keech v. Yousef, 815 So. 2d 718, 719 (Fla. 5th DCA 2002).
Here, Central contends that it could not have raised an objection regarding the application of Rule 1.140(c) to the proceedings below because it had no notice that the trial court would apply that rule until it actually granted Progressive’s motion. However, this ignores the undisputed evidence that Central was aware that Progressive intended to proceed under this rule. In particular, this Court notes that in rescheduling the Pre-Trial Conference, the parties stipulated that Progressive would be filing a Motion to Dismiss based upon standing and that such motion would be argued at the rescheduled conference. Central was also served with notice that the Motion for Judgment on the Pleadings would be argued at the November 6 hearing.
Further, the Motion for Judgment on the Pleadings was filed more than six weeks prior to the hearing, providing Central with ample time to object to the application of Rule 1.140(c) to the proceedings if it so desired. Compare Robinson v. Progressive Casualty Ins. Co., 11 Fla. L. Weekly Supp. 738a (Fla. 18th Cir. Ct. March 3, 2004) (granting plaintiff’s motion to strike defendant’s offer of judgment and proposal for settlement when they were filed prior to invoking appropriate Rule of Civil Procedure). However, Central failed to file any response to this motion, instead filing a Motion to Stay that did not address the applicability of the Small Claims Rules.
This Court recognizes that at the actual hearing, the trial court focused its attention on the Motion to Stay. However, the trial court’s comments at the hearing indicated that it was clearly contemplating granting Progressive’s Motion for Judgment on the Pleadings. Further, Central should have been prepared to discuss all aspects of Progressive’s motion because it had been served with notice that this motion would be argued. Still, Central raised no objection at the hearing to the court’s ruling on the motion.
Central urges this Court to follow its decision in Sypien v. NCO Financial Sys., Inc., 10 Fla. L. Weekly Supp. 755a (Fla. 6th Cir. Ct. Aug. 13, 2003), which found that the trial court had improperly invoked R. 1.140(c). However, this Court found the application of R. 1.140(c) improper “under the facts of [the] case,” id., and the facts of Sypien are quite different from the facts here. Specifically, in Sypien, the hearing on the motion for judgment on the pleadings was held a mere seven business days after the motion had been filed. Id. There was also no indication in the record that Sypien had any prior notice that NCO would be filing such a motion or that she signed any stipulation to that effect. Id.
Further, Sypien recognized that the underlying purpose of Rule 7.020(c) is to ensure that a party “be given adequate notice that an opposing party intends to proceed under a Florida Rule of Civil Procedure.” Id. While this Court does not take the order requirement of Rule 7.020(c) lightly, it does find that Central waived its right to raise this issue on appeal because (1) Central signed a stipulation that Progressive would be filing a motion to dismiss based on standing; (2) Central had adequate notice and time to object to the application of Rule 1.140(c) to these proceedings; and (3) Central also failed to object to the application of Rule 1.140(c).
Central’s second contention is that the trial court erred by focusing solely on the statement, “THIS DOCUMENT CONSTITUTES AN ASSIGNMENT OF BENEFITS NOT AN ASSIGNMENT OF CAUSE OF ACTION” to conclude that the Assignment Form did not create a valid assignment as a matter of law. Central asserts that when the language of the Assignment Form is read as a whole, at the very least a factual issue arises regarding whether the form constitutes a valid assignment. In support of its position, Central cites this Court’s decision in Gainesville MRI Center v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 573a (Fla. 6th Cir. Ct. June 9, 2003), which held that a virtually identical assignment of benefits form gave rise to a question of fact on whether the insured or the medical provider “owned” the cause of action against the insurance company.
Progressive, however, contends that Gainesville MRI Center does not control this matter because in that decision, the Court failed to consider whether the inconsistencies in the form were patent or latent in nature.4 Progressive contends that the Assignment Form contains a patent ambiguity that cannot be clarified by extrinsic evidence and must be construed against Central as the drafter. Further, when the Assignment Form is so construed, the form fails as a matter of law to constitute a valid assignment.
This Court agrees with Progressive that before determining whether extrinsic evidence may be allowed to explain the ambiguity in a document, a court must first ascertain whether the ambiguity is latent or patent. See Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1002 (Fla. 2d DCA 1995). This distinction is crucial because while extrinsic evidence may be introduced to clarify a latent ambiguity, it may not be considered when the ambiguity is patent. Id. at 1002-03.
While the distinction between these ambiguities is itself somewhat confusing,5 a latent ambiguity generally exists where a contract appears “clear and unambiguous on its face” but “the existence of some collateral or extraneous matter renders the contract’s application uncertain.” Id. at 1002-03 (citing United States v. South Atlantic Prod. Credit Ass’n, 606 So. 2d 691 (Fla. 1st DCA 1992)). Under such circumstances, a trial court may admit parol evidence as necessary “ ‘for the interpretation or a choice between two possible meanings.’ ” Id. at 1002 (quoting Crown Mgmt. Corp. v. Goodman, 452 So. 2d 49, 52 (Fla. 2d DCA 1984)).
A patent ambiguity, however, “appears on the face of a contract and arises from the use of defective, obscure or insensible language.” Id. at 1002 (citing Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So. 2d 544 (Fla. 1st DCA 1973)). Extrinsic evidence may not be introduced to address patent ambiguity because it would in essence allow the trial court to modify a contract by including information the parties did not intend to include. Id. (citing Landis v. Mears, 329 So. 2d 323 (Fla. 2d DCA 1976)). Further, ambiguous terms in a contract must be construed against the party that drafted the contract. City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. 2000).
Reviewing the conflicting statements in the Assignment Form, this Court concludes that the ambiguity is apparent from the face of the form itself and hence is patent in nature. The problem is not that the form fails to address the assignment of Alexander’s right to sue Progressive; it is that the form addresses that right in too many places and in contradictory terms. Consequently, the trial court was correct in confining its review of the form to the document itself and determining that no factual dispute existed. Further, construing all of the conflicting statements against Central, particularly the capitalized language, this Court also agrees with the trial court’s determination that the Assignment Form did not create a valid assignment of Alexander’s causes of action as a matter of law.
However, without expressing any opinion as to the ultimate merits of Central’s case, this Court does find that Central’s pleading regarding equitable assignment was sufficient to survive a motion for judgment on the pleadings. “[A]ny language, however, informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment.” Giles v. Sun Bank, N.A., 450 So. 2d 258, 260 (Fla. 5th DCA 1984). Here, Central’s Complaint alleged an equitable assignment based upon the insured’s signing a document intending to assign benefits to Central, which was created in consideration of Central’s (1) providing medical services; (2) foregoing its right to immediately collect payment from insured; and (3) performing tasks commensurate with litigating a claim against Progressive. These allegations are more than sufficient to plead successfully the existence of an equitable assignment.
Therefore, it is
ORDERED AND ADJUDGED that the Final Order is reversed and that this matter is remanded for further action consistent with this Order and Opinion.
It is further
ORDERED AND ADJUDGED that Appellant’s Motion for Attorney’s Fees is granted. Appellant is entitled to reasonable attorney’s fees expended on this appeal contingent upon it ultimately prevailing in the action below. The trial court shall determine the amount of these fees.
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1This Court finds this Order to be final for appellate purposes, which neither party disputes. See Martinez v. Collier County Pub. Sch., 804 So. 2d 559, 560 (Fla. 1st DCA 2002) (dismissal without prejudice is final for appellate purposes if its effect is to bring an end to judicial labor).
2The stipulation stated that Progressive would also be filing a Motion for Summary Judgment based upon Proof of Mailing as required by the No-Fault law. Progressive did file this motion, but the trial court expressly did not rule on it and it is not at issue here.
3Although Progressive had stipulated that it would file a Motion to Dismiss rather than a Motion for Judgment on the Pleadings, this distinction is one of semantics only as either motion would be based on the same grounds and, in this instance, would have had the same effect. See Martinez v. Fla. Power & Light Co., 863 So. 2d 1204, 1205 (Fla. 2003) (quoting Reinhard v. Bliss, 85 So. 2d 131, 133 (Fla. 1956)) (test for judgment on the pleadings is the same one used for reviewing a motion to dismiss for failure to state a claim).
4The reversal of the trial court’s decision in Gainesville MRI Center was actually not based upon the ambiguity in the assignment form. Instead, this Court reversed because the trial court improperly dismissed the MRI center’s amended complaint based on Progressive’s Motion to Dismiss directed at the original complaint.
5Some district court decisions have expressed frustration with the latent/patent distinction. See, e.g., Crown Mgmt. Corp. v. Goodman, 452 So. 2d 49, 52 (Fla. 2d DCA 1984). However, as this distinction still appears to exist in Florida law, Florida courts still generally adhere to it. See, e.g., First Coast Cmty. Bank v. Cheshire Contractors, 863 So. 2d 362, 363 (Fla. 1st DCA 2003) (determining that ambiguity was patent and hence, that no extrinsic evidence was admissible); Luciano v. Franchino, 730 So. 2d 410, 412 (Fla. 2d DCA 1999) (determining that ambiguity was latent).
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