14 Fla. L. Weekly Supp. 668b
Insurance — Personal injury protection — Standing — Assignment — Document purporting to be an assignment was not binding on insurer where document was not signed and dated by provider, as specifically required by document — Insurer did not waive defense of invalid assignment by waiting until 3 years after suit was filed to set hearing on motion for summary judgment where defense was raised in answer and amended answer, and insurer established that it originally received completely blank assignment form and waited until after provider produced more fully completed, but unexecuted, form in response to request for production before bringing motion for summary judgment before court
DIGITAL MEDICAL DIAGNOSTICS, (Midline Rosier), Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-13430 SP 23. April 10, 2007. Nunc pro tunc to Dec. 19, 2006. Caryn Canner Schwartz, Judge. Counsel: Brian Rodier, for Plaintiff. Brian S. Tenzer, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, for Defendant.
REVERSED at 15 Fla. L. Weekly Supp. 1147b
AMENDED FINAL ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL SUMMARY JUDGMENT
THIS CAUSE having come before this Court on Defendant’s Motion for Final Summary Judgment heard on September 22, 2006, and after having reviewed the file, heard argument of counsel, reviewed the memorandums and case law in support and in opposition of Defendant’s Motion, and having been sufficiently advised in the premises, the Court finds as follows:
The Plaintiff submitted to Defendant, prior to the filing of this lawsuit, a document purporting to be an assignment of benefits which stated, in pertinent part:
I, the undersigned patient hereby assign [sic] the rights and benefits of insurance of the applicable personal injury protection medical payments and/or other insurance to _________ of [sic] services and/or supplies rendered for treatment of personal treatment [sic] of personal injuries sustained in the accident of _________ to the undersigned patient and covered by Personal Injury Protection (PIP) Coverage of other insurance coverage [sic] under __________ in accordance with Florida Statute 627.736(5). . . . As part of this assignment of rights and benefits, which only becomes binding upon the insurance carrier receipt of said assignment after it having been executed and dated by the Health Care Provider. [sic] I hereby instruct the insurance carrier that in the event the subject medical benefits are disputed for any reasons [sic], including medical reasonableness and or [sic] necessity that the amount of benefits claimed by _________ is to be set aside and not disbursed until dispute [sic] is resolved. . . . (emphasis added) (blank spaces in original).
The Plaintiff also submitted a second version of this same document to Defendant in discovery in which all the blanks were filled in, above the line entitled “PATIENT’S PRINTED NAME.”
The document relied upon by the Plaintiff as an assignment of benefits specifically provides that the document“which only becomes binding upon the insurance carrier receipt of said assignment after it having been executed and dated by the Health Care Provider.”As the document was NOT executed or dated by the Plaintiff, this Court finds that, by its own terms, the document is not binding on the Defendant and, therefore, is not an assignment of benefits as a matter of law. As there is no assignment of benefits executed in favor of the Plaintiff as a matter of law, the Plaintiff lacks standing to pursue this action against the Defendant.
This Court rejects Plaintiff’s argument that Defendant waived its defense that the assignment of benefits was invalid and that the Plaintiff lacked standing by waiting to set its hearing on Defendant’s Motion for Final Summary Judgment until approximately three years after the suit was filed. This Court carefully considered Plaintiff’s argument and Florida law presented by Plaintiff; however, a review of the pleadings and discovery responses clearly reflects that this defense was not waived. Defendant raised the defense of an invalid assignment of benefits in its Answer as well as in its Amended Answer and, thus, the Plaintiff has been on notice from the beginning of this case that Defendant was challenging the validity of the document submitted as an assignment of benefits and Plaintiff’s lack of standing. Since this defense was raised as an affirmative defense in both the original and amended pleadings, it is not waived pursuant to FRCP 1.140(h)(1).
Additionally, Defendant established why it waited to file its Motion for Final Summary Judgment until after it received Plaintiff’s Response to Defendant’s Request for Production1. Defendant did not receive responses to its Request for Production from Plaintiff for some time after said request was propounded. At the hearing on Defendant’s Motion for Final Summary Judgment, the Defendant presented to the Court the document submitted by the Plaintiff in Response to Defendant’s Request for Production which was different from the document originally submitted by the Plaintiff prior to the lawsuit being filed. The document provided to Allstate prior to litigation did not have any of the blanks filled in with information necessary to complete the substance of the form (other than patient’s name, date and the patient’s signature). Furthermore, even though the document submitted to Allstate in Response to Defendant’s Request for Production included all of the requested information that was missing from the original document submitted to Allstate, such subsequent document was still not executed and dated by the provider. Thus, after considering all caselaw presented by both parties, Defendant satisfactorily demonstrated why it waited until after receiving Plaintiff’s response to its Request for Production before bringing its Motion for Final Summary Judgment before this Court.
As the document relied upon by the Plaintiff, by its own terms, is not binding on the Defendant and, therefore, is not an assignment of benefits as a matter of law, and because Defendant did not waive its affirmative defense that the assignment of benefits was invalid and that the Plaintiff lacked standing to bring the instant action, it is, accordingly, ORDERED and ADJUDGED that Defendant’s Motion for Final Summary Judgment is GRANTED and Final Judgment is entered on behalf of the Defendant. The Plaintiff, DIGITAL MEDICAL DIAGNOSTICS, INC. shall take nothing in this action and Plaintiff shall go hence without day. The Court reserves jurisdiction on the issue of attorney fees and costs.
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1Defendant stated that it was waiting to file its Motion for Summary Judgment until receipt of Plaintiff’s responses to Request for Production in order to compare the document received by Allstate prior to litigation to that contained in Plaintiff’s medical file.
