13 Fla. L. Weekly Supp. 349a
Insurance — Personal injury protection — Standing — Assignment — Revocation — Effective date — Parol evidence — Where written revocation of assignment signed by medical provider and insured after date insured served pre-trial demand letter is silent as to effective date of revocation, affidavits of insured and provider stating insured and provider orally agreed to revoke assignment prior to date of demand letter should be considered by court since affidavits supply omitted fact
HEATHER BISSETT, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. SP04-951, Division 65 (CHR). December 29, 2005. Patti A. Christensen, Judge. Counsel: David G. Candelaria, Farah, Farah & Abbott, PA., Jacksonville. Glenn S. Banner, Rinaman & Associates, P.A., Jacksonville.
ORDER
THIS CAUSE was before the Court upon Defendant’s Motion for Summary Judgment and Defendant’s Motion to Strike Affidavits of Plaintiff HEATHER BISSETT andDIANA THERESA WHEELER, who is a billing representative for Plaintiff’s medical provider. It should be noted that the Plaintiff has a pending Motion for Summary Judgment which was argued at an earlier hearing. However, due to time constraints, full argument was not heard. Therefore, Plaintiff’s Motion for Summary Judgment remains pending. Plaintiff’s ore tenus Motion to Complete Argument on its Motion for Summary Judgment was denied by the Court upon the objection of Defendant because the matter had not been called up for hearing.
Prior to arguing its Motion for Summary Judgment, Defendant made an ore tenus Motion to file an Amended Complaint to amend its responses therein at paragraphs 10 and 12 to deny that Plaintiff’s pre trial demand letter was sufficient. The Court denied the Motion upon Plaintiff’s objection because no formal notice has been filed and the matter had not been called up for hearing. Because the Defendant’s Answer and the position taken in its Motion for Summary Judgment were at odds, Defendant elected not to proceed on the Motion for Summary Judgment until it had the opportunity to amend its Answer. Accordingly, the hearing went forward solely on the Motion to Strike Affidavits. Having heard argument of counsel and being otherwise fully advised in the premises, the Court
FINDS:
Defendant challenges the Affidavits of BISSETT and WHEELER as containing parole evidence that would be inadmissible to alter or vary the terms of a written document. Specifically, the Affidavits indicate that Plaintiff and her provider orally agreed to revoke an assignment of benefits from Plaintiff to the provider which allowed the provider to seek payment from the Plaintiff’s insurance company, PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant herein. According to the Affidavits, the assignment was mutually rescinded by oral agreement prior to April 16, 2004, which is the date Plaintiff served her pre-trial demand letter on Defendant. Plaintiff and her provider entered into a written mutual revocation of assignment that was signed by Plaintiff on April 22nd 2004 and by the provider’s agent on May 5th 2004. According to the terms of the mutual revocation, it “shall apply to all future treatment rendered to me by the medical provider as well as to any and all past treatment for which full payment has not been rendered by the insurance company.” The written mutual revocation is silent as to its effective date. Generally, a contract becomes effective on the date the last party signs. However, in this case both parties to the mutual revocation have submitted sworn affidavits stating that the effective date was prior to April 16th 2004. The Court finds that the affidavits should be considered since they supply an omitted fact, that being the effective date of the revocation.
The Court has considered the Memoranda filed by the parties as well as the cases cited therein. Upon consideration thereof, it is
ORDERED
Said Motion to Strike Affidavits is denied.
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