14 Fla. L. Weekly Supp. 389b
Insurance — Personal injury protection — Standing — Assignment — Revocation — Where insured assigned benefits to one of medical providers whose bills were subject of insured’s suit against insurer and did not execute revocation of assignment until after filing suit, insured lacked standing to bring claim for that provider’s services — Partial summary judgment granted in favor of insurer
LILIAN BROWN, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in Orange County. Case No. 05-CC-8069. January 29, 2007. Antoinette D. Plogstedt, Judge. Counsel: Christian Payer. George Milev, Adams & Diaco, P.A., Tampa.
ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on Defendant’s Amended Motion for Partial Summary Judgment on January 22, 2007, the Court having heard arguments by counsels for Plaintiff and Defendant and otherwise being fully advised in the premises, hereby
FINDS, ORDERS AND ADJUDGES as follows:
1. Plaintiff filed a complaint against PROGRESSIVE alleging breach of contract for failure to pay Personal Injury Protection benefits.
2. One of the bills at issue according to Plaintiff’s Complaint is a bill by Altamonte Springs Imaging for dates of service January 28, 2003 and February 13, 2003.
3. During the course of discovery Defendant obtained an Assignment of Benefits from Plaintiff to Altamonte Springs Imaging.
4. The Assignment of Benefits in its pertinent part states: “THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS AND BENEFITS UNDER THE POLICY”.
5. The Assignment further states: “These instructions are irrevocable and may not be changed without the written agreement of the Imaging Facility.”
6. In response to Defendant’s Request to Produce, Defendant obtained a document titled Revocation of Assignment of Insurance Benefits previously given to Altamonte Springs Imaging.
7. Based on the language of the document, and as stipulated to by Plaintiff, the Revocation of Assignment was obtained after filing of the current lawsuit, namely on 2/16/06.
8. A Plaintiff’s lack of standing at the inception of the case is not a defect that may be cured later by acquisition of standing after the case is filed. See Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2nd DCA 2005).
9. An unqualified assignment transfers to the assignee all the interest of the assignor under the contract at issue and the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee. See State Farm Fire & Casualty Co. v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990).
10. At any one time, only the insured or the medical provider “owns” the cause of action against an insurer for PIP benefits. See Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001).
11. The issue of standing can properly be decided on a Motion for Summary Judgment. See Santa Rosa County v. Administration Commission, 661 So. 2d 1190 (Fla. 1995); Lamar v. Wheels Unlimited, 513 So. 2d 135 (Fla. 1987); Sterile Products Corporation v. Jones, 702 So. 2d 628 (Fla. 5th DCA 1997); Taran v. Blue Cross Blue Shield of Florida, 685 So. 2d 1004 (Fla. 3rd DCA 1997).
12. It is well settled that standing is equated with subject matter jurisdiction. See Silver Star Citizens’ Committee v. City Counsel of Orlando, 194 So. 2d 681 (Fla. 4th DCA 1967).
13. The defense of lack of subject matter jurisdiction can be raised at any time because the issue of standing goes to the very jurisdiction of the court. See Marion Correctional Inst. v Kriegel, 522 So. 2d 45 (Fla. 5th DCA 1988).
14. Standing is a question of law as lack of standing of a party deprives the court of subject matter jurisdiction over that party. See Guernsey v. Haley, 107 So. 2d 184 (Fla. 2nd DCA 1958).
15. 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).
16. Thus, because Plaintiff assigned her insurance benefits to Altamonte Springs Imaging, and the alleged Revocation was executed after filing of the current lawsuit, said clinic is the proper party that should have brought the lawsuit regarding Altamonte Springs Imaging’s bill.
WHEREFORE, Defendant’s Motion for Partial Summary Judgment as to all claims filed on behalf of Altamonte Springs Imaging’s bill is hereby GRANTED. Plaintiff lacked standing at the time of filing of the current lawsuit to bring such claims.
