12 Fla. L. Weekly Supp. 812a
Insurance — Personal injury protection — Standing — Assignment — Validity — Where alleged assignment states it is assignment but holds insured liable for total amounts payable to provider as well as cost of anyone hired by provider for collection of payment and allows provider to collect all monies for treatment without requiring provider to wait for payment from insurer, plain language is not indicative of intent to create assignment — Dismissal of complaint is without prejudice but, because there will be no leave to amend and provider cannot maintain action with current assignment attached to complaint, final judgment is entered
DARSHAN AGGARWAL, M.D., P.A., (Rodney Jones), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 04SC001044. May 12, 2005. Thomas J. Walsh, Jr., Judge. Counsel: Alejandro Garcia, Toral & Associates, Fort Lauderdale. Dena Sisk Foman, Vernis & Bowling, P.A., North Palm Beach.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court on the Defendant’s Motion to Dismiss and the Court having heard argument and being otherwise advised in the premises makes the following findings of fact:
A document that was dated August 21, 2003 was provided to the Court, (Defendant’s Exhibit #1) as the Plaintiff’s alleged assignment of benefits that purports to allow standing for the Plaintiff (a medical provider) to sue the insured’s No-Fault insurance company in the personal injury protection lawsuit. The document states in paragraph #3: “I understand that I remain personally responsible for the total amounts due to any insurance company, adjuster, or attorney to facilitate collection under this Assignment, Lien and Authorization does not constitute any consideration for the Office to await payments and they may demand payments from me immediately upon rendering service at their option.”
The language in the above-cited paragraph holds the insured liable for not only total amounts payable to the provider, but also for anyone hired by the medical provider for collection of said payment. As well, the document gives the medical provider the right to collect all monies for medical services rendered without requiring them to wait for payment from the insurance company. Hence, there was no consideration for the assignment of benefits as the only party that retained any benefit was the medical provider. There was no benefit to the insured and, hence, no intention to create an assignment of benefits.
In April of 2004, this court granted summary judgment in the Defendant’s favor based upon an assignment that left the insured personally responsible for their medical bills. Neurology Consultants a/a/o Molly Micklaw, Plaintiff, v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 585b, April 14, 2004. The court opined that the language “I understand that I remain personally responsible for the total amounts due the Office for their services” did not constitute an assignment of benefits as the insured remained personally responsible for the entire bill regardless of whether her insurance company paid her bill or not.
Without a valid assignment of the right to the personal injury protection benefits, a provider lacks standing to bring suit against an automobile insurer pursuant to the insurance contract. Hartford Insurance Company of the Southeast v. St. Mary’s Hospital, Inc., 771 So.2d 1210 (4th DCA 2000). While the document at issue, in the first paragraph, states it is an assignment, the plain language of paragraph three, as cited, is not indicative of the this document being an assignment of benefits. It has been held that a provider lacked standing to bring an action against an insurer based on a document which was entitled “Assignment of Benefits”, but which was merely a functional equivalent of a direction to pay. Lighthouse Orthopedic Associates, P.A. (a/a/o Kylee Treyz) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 152b (Co. Ct., Broward, November 18, 2003). The fact that a document merely states that it is an assignment of benefits does not automatically confer standing to the Plaintiff. The language of the document has to be considered in its entirety.
Plaintiff’s counsel argues that the document at issue in this case is different as the language of the third paragraph only holds the insured responsible for any costs to collect the monies owed for treatment rendered. However, when the paragraph is read in its entirety, the insured is not only responsible for collection, but the entire amount billed by the provider. Further, the medical provider has the option of collecting the entire amount of the medical from the patient at the time the services are rendered. The insured gained no benefit from this arrangement.
The Fifth District found in Oglesby that there is an assignment of benefit “in which the medical provider agrees to perform services based only on an unqualified assignment of medical benefits on the condition that the patient will be ultimately responsible for any medical bills either not covered by the policy or simply not paid by the insurer.” Oglesby v. State Farm Mutual Automobile Insurance Company, 781 So. 2d 469 (5th DCA 2001). This document falls short of the language recognized in Oglesby as the insured remains liable for the entire amount billed and any amounts charged to collect the monies owed.
The plain language of the document purported to be an assignment of benefits is unambiguous. The Court finds that the plain language of the alleged assignment is not indicative of the parties intent to create an assignment of benefits. Therefore, further inquiry into the intent of the parties is not necessary. Orthopedics of Brevard, P.A. v. Progressive Casualty Insurance Company, 11 Fla. L. Weekly Supp.163a (Co. Ct., Brevard, November 21, 2003).
Accordingly, it is hereby,
ORDERED AND ADJUDGED as follows:
That based upon the foregoing it is in the Court’s finding that Plaintiff, Darshan Aggarwal, M.D., P.A. did not possess an assignment of benefits from the Defendant’s insured. As such, the plaintiff failed to obtain standing in order to pursue this cause of action against Progressive Express Insurance Company. The court hereby grants Progressive Express Insurance Company’s Motion to Dismiss for Lack of Standing.
The Court further finds that the dismissal is without prejudice. However, there will be no leave to amend the Complaint and thus, this Plaintiff cannot maintain an action against this Defendant with the current assignment attached to this Complaint. The Court enters final judgment in favor of the Defendant and the Plaintiff shall take nothing by this action and the Defendant, Progressive Express Insurance Company shall go hence without day.
* * *
