12 Fla. L. Weekly Supp. 1144a
Insurance — Personal injury protection — Standing — Assignment — Purported oral assignment made by mother of minor insured, raised for first time in affidavit filed three days prior to summary judgment hearing, fails for lack of notice — Minor’s lack of capacity to sue would present procedural hurdle which could be remedied by appointment of guardian or next friend, but would not foreclose minor’s ability to ultimately have her interests determined by court — Minority of insured does not in and of itself invalidate written assignment, as contract of minor is voidable rather than void — Where there is no evidence that minor insured sought to disaffirm assignment, and minor reaffirmed intent to assign benefits in affidavit filed in opposition to insurer’s motion for summary judgment, entry of final summary judgment in favor of insurer was improper
HEALTHY TOUCH, INC., a/a/o TOSHA DECKER, Appellant, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 04-04-AP. July 29, 2005. Appeal from Seminole County Court. Honorable John R. Sloop. Counsel: Thomas Andrew Player, Weiss Legal Group, P.A., Maitland, for Appellant. Mark D. Tinker, for Appellee.
(NELSON, D.) Appellant, Healthy Touch, Inc., a/a/o Tosha Decker (“Healthy Touch”), seeks reversal of a Final Summary Judgment order entered by the trial court in this action. The underlying suit was instituted by Healthy Touch pursuant to an Assignment of Benefits to Healthy Touch from Tosha Decker (“Decker”), a minor. Decker was an omnibus insured under a policy of insurance issued by the Appellee, Nationwide Mutual Fire Insurance Company (“Nationwide”), to Decker’s mother, Jacqueline Weaver (“Weaver”).
After suffering injuries in an automobile accident in 2002, Decker received therapeutic medical massage therapy services from Healthy Touch and, later, signed an assignment of benefits in favor of Healthy Touch. After Nationwide reduced payment for two bills submitted by Healthy Touch for massage therapy rendered to Decker, Healthy Touch filed suit to recover the balance of the unpaid PIP benefits. Nationwide answered and asserted as an affirmative defense that Healthy Touch lacked standing to sue because it did not possess a valid assignment of benefits.
Nationwide moved for summary judgment arguing that “[a]t the time of the assignment at issue, Tosha Decker was twelve (12) years of age and had no enforceable contract rights to transfer to [Healthy Touch],” thereby rendering the assignment unenforceable. Approximately three days prior to the lower court’s December 11, 2003, summary judgment hearing, Healthy Touch filed affidavits from Decker and Weaver, respectively. Both affidavits specified that the written assignment by Decker was supposed to assign “Tosha Decker’s rights and benefits under any applicable insurance policy” to Healthy Touch. Weaver’s affidavit additionally asserted that Weaver had “orally assigned to Healthy Touch all of Tosha Decker’s rights and benefits under any applicable insurance policy . . . .” Weaver’s affidavit represented the first time, either before or during the action, that Nationwide had been placed on notice regarding an alleged “oral” assignment. After a hearing on December 11, 2003, the trial judge entered final summary judgment in favor of Nationwide on January 5, 2004.
Healthy Touch raises four issues on appeal. This Court agrees with Nationwide that Weaver’s purported oral assignment fails for lack of notice. See, e.g., Mckean v. Kloeppel Hotels, Inc., 171So.2d 552 (Fla. 1st DCA 1965) (“. . .[t]he party opposing the motion [for summary judgment] will not be permitted to alter his position as occasion may indicate to be expedient in order to evade the consequences of his previous pleadings, admissions, affidavits, depositions or testimony.”). This Court finds merit, however, in Healthy Touch’s position that the lower court erred with respect to its apparent finding that Decker, as a minor, did not have any rights or interest in the subject policy, and therefore did not have the power to make an assignment.1 In response, Nationwide alleges that Decker, as a minor, does not have the capacity to sue under Florida law. See Fla. R. Civ. P. 1.210. Nationwide concludes, therefore, that Decker cannot assign to others what she does not possess herself (i.e. the capacity to sue). It appears that there is some confusion as to the lack of capacity to sue and the lack of right (or standing) to sue. As the Court in Felson v. Miller, 674 F. Supp. 975, 977 (E.D.N.Y. 1987) noted:
The differences between standing and capacity can easily be illustrated. An infant alleging personal injury would lack capacity, but would satisfy the standing requirement. A competent adult failing to allege an interest in a claim would lack standing, but have capacity to sue.
In the instant case, had Decker not assigned her benefits to Healthy Touch and, later, been forced to bring suit to enforce her right to payment of PIP benefits, her lack of capacity to sue would have constituted a procedural hurdle and not a jurisdictional bar to her action. See Smith v. Langford, 255 So.2d 294, 297 (Fla. 1st DCA 1971). Instead, Decker would be required to bring suit through a guardian or like fiduciary, or next of friend to comply with the dictates of Florida Rule of Civil Procedure 1.210. Under such circumstances, “[w]here the next of friend brings the suit, the minor is the real party in interest.” Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999). Thus, a lack of capacity would present a procedural hurdle to Decker’s suit, which could be remedied by the appointment of a guardian or next of friend such as Weaver. In any event, Decker’s lack of capacity would not foreclose her ability to ultimately have her interests determined by a court of law.
As for the assignment itself, this Court finds that Decker’s minority does not in and of itself invalidate the assignment. An assignment such as Decker’s is a contract. In order for the assignment to be valid, it must possess the same requisites (parties, subject matter, mutual assent, consideration) as any other contract. In Florida, “[e]xcept as to a very limited class of contracts considered binding, as for necessities, etc., the modern rule is that the contract of an infant is voidable rather than void.” See Diallo v. Riding Safely, Inc., 687 So.2d 353 (Fla. 4th DCA 1997). The contracting minor may later disaffirm the contract or ratify it.
In the instant case, there has been no evidence presented which would indicate that Decker sought to disaffirm the assignment of benefits to Healthy Touch. To the contrary, Decker’s affidavit evidences a reaffirmation of her intent to assign her benefits to Healthy Touch. Accordingly, this Court finds that final summary judgment was improper as Healthy Touch had received a valid assignment of benefits from Decker. Accordingly, the lower court’s January 6, 2004, Order is REVERSED and REMANDED for further proceedings not inconsistent with this Opinion.
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1In its January 6, 2004, Order the lower court did not provide its reasoning regarding its entry of final summary judgment for Nationwide.
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