14 Fla. L. Weekly Supp. 187b
Insurance — Personal injury protection — Standing — Assignment — Validity — Language of assignment clearly and unambiguously shows intention of insured to assign PIP benefits to medical provider in exchange for medical services rendered — Provider’s provision of assignment to insured for his signature, treatment of insured, submission of bills to insurer, and filing of suit against insurer indicates intention of provider to accept assignment of benefits — Assignment is valid despite absence of provider’s signature and date of execution — Insurer may lack standing to attack formation of assignment to which it was not party
MARTINEZ CHIROPRACTIC CENTER, INC., (Bohdan Kos, Patient), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 06-001832 (50). December 4, 2006. Peter B. Skolnik, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Orlando Ortiz, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT’S SECOND AFFIRMATIVE DEFENSE
THIS CAUSE having come before the undersigned upon the Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Second Affirmative Defense. The court having reviewed the Motion and the entire court file, heard argument, reviewed relevant legal authorities, and been sufficiently advised on the premises, it is hereupon:
ORDERED AND ADJUDGED as follows:
1. The above styled cause of action arises out of a motor vehicle accident which occurred on or about February 21, 2004.
2. On or about November 7, 2005 Plaintiff filed its claim for unpaid personal injury protection benefits.
3. On October 18, 2006 this Court heard Plaintiff’s Motion for Summary Judgment regarding Defendant’s Second Affirmative Defense which states that the assignment of benefits was invalid and unenforceable due to lack of execution/endorsement by the medical provider, as well as due to lack of proper dating on the document.
4. Summary Judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510.
5. The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits, and pleadings on file. Mack v. Commercial Industrial Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989).
6. Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue.
7. It is not enough for the opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646 (Fla. 4th DCA 1996).
8. An assignment, according to the legal usage of the term, is “a transfer over of property or some right or interest therein, from one person to another. It is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein.” 4 Fla. Jur. 2d, Assignments Sec. 1 (1978). As an assignee, one may enforce payments or the performance of an obligation due under an assigned contract. Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So. 2d 94 (Fla. 1965).
9. Florida has yet to enact fixed requirements or formalities in order for an assignment to be properly executed. “No particular words or form of instrument is necessary to effect an assignment and any language, however informal, which shows the intention on one side to assign a right or chose in an action, and an intention on the other side to receive it, if there has been valuable consideration, will operate as an effective equitable assignment.” Wellness Associates of Florida v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 941b (County Court 17th Judicial Circuit, August 22, 2003).
10. The language of the Assignment of Benefits in the instant case specifically provides, “I, the undersigned patient hereby assign the rights and benefits of insurance of the applicable personal injury protections.” The Assignment further states, “This includes, but is not limited to all rights to collect benefits directly from the insurance company for services that I have received; all rights to proceed against the insurance company obligated to provide benefits in any action including legal suit, if for any reason the insurance company fails to make payment of benefits which I am due.”
11. This Assignment of Benefits was executed on February 24, 2004 by the Patient, Bohdan Kos and co-signed by his mother Oksana Kos. The language of the assignment clearly and unambiguously shows the intention of Bohdan Kos to assign his PIP benefits to the Plaintiff, MARTINEZ CHIROPRACTIC CENTER, INC., in exchange for medical services rendered to him related to injuries sustained in a motor vehicle collision.
12. It is obvious by the signed document that the insured clearly and expressly showed his intent to transfer his benefits to Plaintiff. The mere fact that the provider’s signature and date of execution does not appear on the form does not invalidate the assignment.
13. An assignment may be accomplished by parol, by instrument in writing, or other mode, such as delivery of evidences of the debt, as may demonstrate an intent to transfer and an acceptance of it. Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So. 2d 94 (Fla. 1965). Furthermore, any order, writing, or act which plainly makes an appropriation of a fund or debt, or part of a fund or debt, may constitute an equitable assignment. McClure v. Century Estates, Inc., 96 Fla. 568 (Fla. 1928). Courts of equity can recognize certain kinds of instruments as valid equitable assignments, where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be unjust. Morrow v. Commonwealth Life Insurance Co., 118 Fla. 371 (1935).
14. The true test is whether the debtor would be justified in paying the debt to the person claiming as an assignee. Miami Dade County v. Association Aviation Underwriters, 840 So. 2d 264 (Fla. 3d DCA 2002). In this instance the insurer would most certainly be justified in paying the benefits to Plaintiff as being the assignee of the insured.
15. Defendant contends that the assignment was invalid due to lack of execution/endorsement of the medical provider, as well as due to the lack of proper dating of the document. Under the holdings of existing case law, this language is clearly sufficient in order to effectuate a valid and effective assignment of benefits.
16. Case law has been consistent in finding that no particular words or form of instrument is necessary to effect an assignment, and any language, however informal, which shows the intention on one side to assign a right or choose an action, and an intention on the other side to receive it, is controlling in instances where an assignment is executed between an insured and a medical service provider. Moreover, Defendant has not cited any case law to the contrary. The language in the Assignments of Benefits is clear, ample, concise, and direct.
17. In Pollack v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 183a (17th Jud. Cir. 2005) the court in similar circumstances held that it was “undisputed that the Plaintiff provided insured with an assignment for his signature, treated the insured, submitted bills to Defendant, and filed the above referenced PIP suit against Defendant. Thus, the assignment of benefits is valid and Plaintiff is entitled to Partial Summary Judgment as a matter of law.”
18. The Defendant may not even have standing to attack the formation of the assignment under the circumstances because it was not a party to the assignment. Only the original parties can assert defenses against the formation of assignment. McCampbell v. Aloma National Bank, 185 So. 2d 756 (Fla. 1st DCA 1966); Allstate Ins. Co. v. BMW Enterprises, Inc., 9 Fla. L. Weekly Supp. 95a (17th Judicial Cir. App. 2002).
19. For all the reasons set forth herein, this court concludes that there is no genuine issue of material fact with regards to the validity of the assignment of benefits.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED with respect to Defendant’s Second Affirmative Defense.
