12 Fla. L. Weekly Supp. 479a

Insurance — Personal injury protection — Standing — Assignment — “Consent to Treatment and Authorizations and Guarantee” which failed to assign any and all causes of action to medical provider, failed to transfer to provider insured’s rights in insurance contract, and failed to relinquish insured’s right to PIP benefits is not assignment of benefits, but merely direction to pay — Further, provider failed to satisfy condition precedent to suit by failing to submit valid pre-suit demand letter where a valid assignment was not attached to demand letter

FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., a/a/o Chris Schrack, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 04-SC-4588, Div. 70. January 24, 2005. Order on Motion for Rehearing March 2, 2005. Jerry L. Brewer, Judge. Counsel: Christopher S. Reed, for Plaintiff. Michael P. Liebgold, Reynolds & Stowell, St. Petersburg, for Defendant.

ORDER AND FINAL JUDGMENT

THIS CAUSE having come on for hearing on the Defendant’s Motion for Summary Judgment, on January 11, 2005, and the Court being fully advised in the premises, it is hereby,

ORDERED and ADJUDGED

1. Plaintiff’s document relied upon for standing in this case, entitled “Consent to Treatment and Authorizations and Guarantee,” is not an assignment of benefits and is merely a direction to pay.

2. Said document failed to assign any and all causes of action to the Plaintiff, and in fact explicitly stated that the insured agreed to “actively and vigorously pursue collecting the insurance payment for the hospital.” The insured, therefore, was the only one authorized to file suit. See Abby Chiropractic Center, a/a/o Linda Leonard v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 50b, (Fla. 13th Circ. Hillsborough Cty Ct. 2003).

3. Said document failed to transfer to the Plaintiff the insured’s rights in his contract of automobile insurance. See Bohica Orthopaedics and Rehabilitative Medicine a/a/o Leanne Seals v. Progressive Southeastern Insurance Company, 10 Fla. L. Weekly Supp. 851b, (Fla. 7th Circ. Appellate in and for Volusia Cty. 2003).

4. Said document failed to relinquish the insured’s rights to his PIP benefits. See Physicians Injury Center Inc. v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp 925b (Fla. 13th Circ. Hillsborough Cty Ct. 2001).

5. An assignment is a transfer of property or some right of interest, from one person to another. State Farm Fire and Casualty v. Ray, 556 So.2d 811, 812-3 (Fla. 5th DCA 1990). Such a transfer of some right of interest did not occur here.

6. As there was no conveyance by the insured to the Plaintiff of the right to bring suit to enforce any right under the policy of insurance, the insured retained all rights under its policy of insurance. Comprehensive Physicians Group a/a/o Tiffany Smiley v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 1056a (Fla. 18th Circ. Seminole Cty. Ct. 2003).

7. As the language of the document is clearly written and contains no ambiguities, the Court must construe it by looking solely to the four corners of the document. Burns v. Barfield, 732 So. 2d 1202, 1205 (Fla. 4th DCA 1999), citing Misala, Inc. v. Eagles, 662 So.2d 1389 (Fla 4th DCA 1995).

8. Construction of an unambiguous contract is a matter of law. Burns v. Barfield, 732 So. 2d 1202, 1205 (Fla. 4th DCA 1999), Peacock Construction Co., Inc. v. Modern Air Conditioning, Inc., 353 So.2d 840, 842 (Fla. 1977), Cushman & Wakefield of Florida, Inc. v. Williams, 551 So.2d 1251, 1254 (Fla. 2d DCA 1989).

9. In any cause of action, a Plaintiff must establish standing before the court has any authority to entertain the Plaintiff’s action. Standing cannot be created by waiver, acquiescence, agreement of the parties, by error inadvertence of the parties or their counsel, or by exercise of power by the court. State ex rel. Caraker v. Amidon, 68 So. 2d 403 (Fla. 1953); See also, Polk County v. Sofka, 702 So. 2d 1243 (Fla. 1997); Marion Correctional Institution v. Kriegel, 522 So. 2d 45 (Fla. 5th DCA 1998) rev. denied 531 So. 2d 1354 (Fla. 1988) citing Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969).

10. To establish such standing under a breach of contract action alleging the failure of an insurer to pay certain PIP benefits, a provider must demonstrate that it has a valid assignment at the time the cause of action is filed. Fortune Insurance Co. v. Lugo, 7 Fla. L. Weekly Supp. 435 (Fla. 11th Cir. Ct. April 4, 2000); See also, Shackelford v. Old Dominion Insurance Co., 6 Fla. L. Weekly Supp. 335 (Fla. 20th Cir. Ct. Jan, 20, 1999) citing, Meredith v. Long, 119 So. 114 (Fla. 1928); Florida Power & Light Co. v. System Council U-4 of Intern. Broth. of Elec. Workers, AFL-CIO, 307 So. 2d 189 (Fla. 4th DCA 1975).

11. Because the Plaintiff lacked the requisite standing, there exists no subject matter jurisdiction, and thus no authority, for this Court to hear the above styled action.

12. In addition, Fla. Stat. 627.736(11) requires that a pre-suit demand letter be provided to a PIP insurer as a condition precedent for bringing suit for PIP benefits. Section (b)(1) spells out the specifics of the pre-suit demand letter and states that “a copy of the assignment giving rights to the claimant if the claimant is not the insured” must be included with the pre-suit demand letter.

13. As the assignment was not valid, the Plaintiff failed to satisfy a condition precedent by not attaching “a copy of the assignment giving rights to the claimant if the claimant is not the insured” to its PIP pre-suit demand letter.

14. As the Plaintiff did not have a valid assignment from the insured at the time it brought this suit, it lacked the standing necessary to bring same.

15. Furthermore, the Plaintiff failed to satisfy a condition precedent to bringing this suit by failing to submit a valid PIP pre-suit demand letter by virtue of not attaching a valid assignment of benefits from the insured.

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

ORDERED and ADJUDGED that Plaintiff FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., a/a/o Chris Schrack take nothing by this action and that Defendant PROGRESSIVE EXPRESS INSURANCE COMPANY go hence without day. The Court shall retain jurisdiction to determine the amount of attorney’s fees and costs to be awarded to the Defendant in this matter.

_____________________

ORDER

This cause came on for consideration by the undersigned on the Plaintiff’s Motion for Rehearing/Relief from Order entered January 24, 2005, a hearing was held February 24, 2005 and the court having heard argument and considered the motion it is hereby ordered and adjudged:

The Plaintiff’s Motion for Rehearing/Relief from Order entered January 24, 2005 is Denied.

The Order entered January 24, 2005 is Amended to reserve on the issue of entitlement to attorney fees, not just amount.

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