12 Fla. L. Weekly Supp. 975a
Insurance — Personal injury protection — Standing — Assignment — Irrevocable assignment of benefits is not cancelled by directive to pay executed on same day — Insurer lacks standing to challenge legal sufficiency of assignment to which it is not party — Coverage — Medical expenses — Where insurer has failed to substantially impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician to dispute reasonableness, relatedness or necessity of treatment prior to suspension based on independent medical examination, medical provider is entitled to partial summary judgment — Summary judgment is granted in favor of provider on issue of fraud where insurer has failed to properly plead or prove fraud
DR. STEPHEN CHASE, a/a/o Marie M. Geneus, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-3174 CC 25(2). May 2, 2005. Lawrence D. King, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead, Coral Gables. Craig R. Posner.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT and DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, DR. STEPHEN CHASE, a/a/o Marie M. Geneus’, Motion for Summary Judgment and the Defendant’s Motion for Summary Judgment on the issue of standing, after due notice to all parties, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is GRANTED in part and the Defendant’s Motion for Summary Judgment on the issue of standing is DENIED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiff to Partial Summary Judgment as a matter of law.
2. In the instant case, there remains due and owing $5,950.00, for services provided 8/29/03 through 12/5/03, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date. There does not exist any genuine issue of material fact pertaining to these medical expenses which are reasonable, related and necessary. There remains $810.00 as issue for dates of service 12/8/03 through 1/26/04 since there exists a genuine issue of material fact as a result of the Independent Medical Examination performed by Dr. Gail Golden. The Plaintiff filed the deposition of the adjuster, and the Court finds that the suspension date is the suspension date in the 12/2/03 letter which was 12/9/03, even though the actual IME was performed on 11/20/03.
3. UNITED AUTOMOBILE did not file anything in opposition to the Plaintiff’s Motion for Summary Judgment except the examination under oath taken of the claimant and the subject IME performed by Dr. Golden.
4. The Defendant has failed to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician to dispute the above stated reasonable, related and necessary medical services and expenses.
5. According to the affidavit of Dr. Stephen Chase and the deposition testimony of the adjuster, the Plaintiff timely submitted its bills in compliance with Florida Statutes § 627.736 to UNITED AUTOMOBILE along with the medical records, HCFA billing forms and assignment of benefits.
6. The Defendant withdrew on the record its affirmative defenses pertaining to other coverage.
7. The Court finds as a matter of law that the Defendant has not properly plead and/or proven fraud on behalf of the Plaintiff and grants summary judgment in favor of the Plaintiff on this issue. Florida Rule of Civil Procedure 1.120 (b); Kutner v. Kalish, 173 So. 2d 763 (Fla. 3rd DCA 1965); General Dynamics Corp. v. Hewitt, 225 So.2d 561 (Fla. 3rd DCA 1979). Elements of fraud are misrepresentation of material fact, knowledge that misrepresentation is false, intention that the other party rely, justifiable reliance and resulting injury or damage. See Eastern Cement v. Halliburton Co., 600 So.2d 469 (Fla. 4th DCA 1992); Arnold v. Weck, 388 So.2d 269 (Fla. 4th DCA 1980).
8. The Court denies the Defendant’s Motion for Summary Judgment on the Plaintiff’s alleged lack of standing and finds that the Plaintiff has standing in this case. The Defendant argues the Plaintiff lacks standing to bring the current action as the claimant executed an assignment of benefits and a directive to pay on the same day. The Defendant asserts the directive to pay cancels the assignment of benefits. This Court finds as a matter of law that the subject irrevocable assignment of benefits was valid and that the directive to pay does not cancel each other out rendering each null and void. Further, this Court finds that the Defendant lacks standing to challenge the legal sufficiency of the subject assignment of benefits since it was not a party to that agreement.
9. The only remaining issues are the $810.00 in medical expenses for dates of service 12/8/03 through and the issue of material misrepresentation as plead in the Defendant’s Amended Answer and Affirmative Defenses dated 9/30/04.
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