12 Fla. L. Weekly Supp. 923a
Insurance — Personal injury protection — Standing — Assignment — Action against insurer brought by insured who executed assignment providing that she would become financially responsible for medical provider’s bills if insurer failed to pay claim and who subsequently paid bills when insurer denied claim — Trial court erred in granting insurer’s motion for summary judgment based on insured’s lack of standing where there exist genuine issues of material fact as to whether assignment was extinguished either by insurer’s refusal to pay bills, by agreement between provider and insured, or by insured’s payment to provider
TERESA REVOREDO, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-421-AP. L.C. Case No. 03-18887 CC 05. July 19, 2005. An appeal from the County Court for Miami-Dade County. Counsel: Martin E. Leach, for Appellant. Mark Gatica and Richard B. Burke, for Appellee.
(Before ROBERT N. SCOLA, JR., CELESTE MUIR, SANDY KARLAN, JJ.)
(SCOLA, J.) This is an appeal of an order by the lower court, which entered a final summary judgment in favor of Appellee, United Automobile Insurance Company (United Auto). For the reasons discussed below, we reverse the order granting final summary judgment.
On September 17, 2002, Teresa Revoredo (Revoredo) was involved in an automobile accident and sustained serious injuries. At the time of the accident, Revoredo was insured by United Auto. Her insurance policy included coverage for PIP benefits. Revoredo subsequently sought medical treatment at South Miami Sports Medicine and Hand Therapy (South Miami Sports) and incurred medical expenses. At the time that medical treatment was rendered, Revoredo assigned her rights to collect PIP benefits to South Miami Sports. This assignment provided, in pertinent part:
I hereby assign all benefits directly to South Miami Sports Medicine and Hand Therapy and also authorize the release of any medical records necessary to process medical claims. I understand fully that in the event my insurance company or financially responsible party does not pay for the services I receive, I will become financially responsible for the payment.
(emphasis added).
South Miami Sports timely submitted a claim for PIP benefits to United Auto but United Auto denied the claim and refused to render payment. As provided by the assignment, South Miami Sports then sought payment from Revoredo due to United Auto’s refusal to pay. Revoredo then paid South Miami Sports $600.00 in full satisfaction of their bill on a compromised basis. Revoredo and South Miami Sports agreed that this payment would satisfy South Miami Sports bill and that Revoredo could sue her own insurance company. Subsequently, Revoredo filed suit against United Auto. After filing an answer to the Complaint, United Auto paid South Miami Sports’ bills.1
In its answer, United Auto asserted as an affirmative defense that Revoredo lacked standing to file suit because she had assigned her rights to South Miami Sports. In its motion for summary judgment, United Auto again asserted that Revoredo lacked standing to bring this cause of action. In opposition to the motion for summary judgment, Revoredo argued that the assignment regarding her medical expenses (1) was extinguished by agreement between herself and South Miami Sports, (2) was conditional because it was contingent upon payment by United Auto and was extinguished when United Auto refused to pay, and (3) was extinguished as a matter of law by Revoredo’s payment to South Miami Sports. The lower court granted United Auto’s motion and entered a final summary judgment against Revoredo. Revoredo filed a timely motion for rehearing which the trial court denied and this timely appeal followed.
A trial court should grant summary judgment only when “the facts are so crystallized that nothing remains but questions of law.” Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003), citing Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). A party moving for summary judgment has the burden of conclusively showing absence of a genuine issue of material fact and the moving party’s entitlement to judgment as a matter of law. McQueen v. Roye, 785 So. 2d 512, 515 (Fla. 3d DCA 2000); Gulfstream Park Racing Ass’n v. Gold Spur Stable, Inc., 820 So. 2d 957, 960 (Fla. 4th DCA 2002). The standard of review when reviewing a lower court’s entry of final summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); see also Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). An appellate court therefore examines the record by the same summary judgment standard as the lower court. See Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 32 (Fla. 1977).
An insurer must pay PIP benefits to a claimant within thirty (30) days of receiving written notice of the loss and amount of the loss. See §627.736(4)(b), Fla. Stat.; Ledesma v. Bankers Ins. Co., 573 So. 2d 1042, 1043 (Fla. 3d DCA 1991). The recipient of such bills is entitled to sue the defaulting insurer for PIP benefits when the benefits have not been paid within thirty (30) days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 897 (Fla. 2003).
We find that the final summary judgment was entered in error since genuine issues of material fact exist as to whether the assignment was extinguished or revoked. An assignment is like any other contract which can be revoked by the mutual agreement of the parties thereto.” Hartford Ins. Co. v. O’Connor, 855 So. 2d 189, 191 (Fla. 5th DCA 2003). An insured that has paid a claim, which has been denied, has suffered an injury and therefore has standing to bring a claim against the insurer. See Kaklamanos, 843 So. 2d at 896 (stating that no standing exists where no injury has occurred). An insured who has been “damaged by an insurance company’s failure to pay a claim . . . [is] entitled to sue a defaulting insurer for PIP benefits.” Id. at 893.
Pursuant to Section 627.736(4)(b), Florida Statues 2005, upon receipt of written notice of Revoredo’s medical expenses, United Auto had a duty to pay her PIP benefits to South Miami Sports. Since United Auto defaulted on this obligation, South Miami Sports held Revoredo financially responsible for her medical bills, per the terms of the assignment. Because the assignment was contingent upon United Auto’s payment of Revoredo’s PIP benefits, South Miami Sports and Revoredo mutually agreed to revoke the assignment. As a result, genuine issues of material fact exist as to whether the assignment was extinguished either: when United Auto refused to pay; or, by the agreement between Revoredo and South Miami Sports; or, by Revoredo’s payment to South Miami Sports. Therefore, summary judgment in favor of United Auto was improper.
REVERSED AND REMANDED. (MUIR and KARLAN, JJ., concur.)
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1The issue of whether payment of the bill after filing an answer to the complaint constitutes a confession of judgment by United Auto is not before this court.
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