12 Fla. L. Weekly Supp. 260a
Insurance — Personal injury protection — Standing — Assignment — Validity — Where insured did not give up any rights or benefits under policy and retained right to file suit, document is merely direction to pay and not assignment — Motion to dismiss medical provider’s suit granted
SOUTH BREVARD CHIROPRACTIC & WELLNESS (As assignee of Teka Reed), Plaintiff, vs. PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2004-SC-30487. November 29, 2004. George B. Turner, Judge. Counsel: George Milev, Adams, Blackwell & Diaco, P.A., Tampa. Gary Smith.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court on November 2, 2004, on Defendant’s Motion to Dismiss, and the Court having heard arguments of counsel for Plaintiff and Defendant and being otherwise fully advised in the premises, hereby FINDS, ORDERS and ADJUDGES as follows:
1. This is an action for alleged breach of automobile insurance contract.
2. Teka Reed was involved in a motor vehicle accident on May 20, 2004 and as a result sustained injuries and received medical treatment.
3. Plaintiff filed a lawsuit as assignee of Tika Reed against Defendant claiming reductions or non-payment of Plaintiff’s bills.
4. Plaintiff alleged in paragraph 4 of its complaint that Tika Reed made an assignment of benefits to Plaintiff.
5. Plaintiff attached the alleged assignment of benefits to the complaint.
6. The alleged assignment of benefits reads in its substantive part:
I hereby grant assignment of benefits to South Brevard Chiropractic and Wellness Center so that any amount authorized to be paid directly to this office will be credited to my account upon receipt. I permit this office to endorse co-issued remittances for the conveyance of credit to my account. However, I clearly understand and agree that all services render(ed) me are charged directly to me and that I am personally responsible for payment. I also understand that if I suspend or terminate my care and treatment any fees for professional services rendered me will be immediately due and payable. . .
7. The language of that document is clear and unambiguous.
8. The issue of standing can properly be decided on a Motion to Dismiss. See Cannery v. Winter Haven Hospital, 279 So. 2d 23 (Fla. 1973); Admiral’s Cove v. Skigen, 879 So. 2d 57 (Fla. 4th DCA 2004).
9. When an alleged assignment of benefits is unambiguous, the construction of the terms of that assignment is a question of law for the court. See Peacock Construction Co. Inc. v. Modern Air Conditioning, Inc., 353 So. 2d 840 (Fla. 1977).
10. In the absence of ambiguity in a document, the language itself is the best evidence of a party’s intent and its plain meaning controls. See Burns v. Barfield, 732 So. 2d 1202 (Fla. 4th DCA 1999).
11. The insured in the current action is not giving up any rights or benefits under the policy of insurance according to the language of the alleged assignment and it appears that she retains the right to file lawsuit.
12. “Only the insured or the medical provider “owns” the cause of action against the insurer at any time. And the one that owns the claim must bring the action.” Oglesby v. State Farm, 781 So. 2d 469 (Fla. 5th DCA 2001).
13. If a party is to give up a right or benefit it should be unambiguously stated within the four corners of the document.
14. The Court finds that by its plain language the document attached to the complaint is merely a direction to pay.
WHEREFORE, Defendant’s Motion to Dismiss is hereby GRANTED.
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