14 Fla. L. Weekly Supp. 1042a
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to refuse to consider opposing affidavit because it was not in court file because rule only requires that affidavit be served on opposing counsel two business days before hearing, and this was done — Standing — Assignment — Document is not assignment or equitable assignment where document states that insured is still responsible for charges, and insured asserted in affidavit that he did not authorize medical provider to file suit against insurer and that he made payments to provider — Error to enter summary judgment in favor of provider who was not assignee of insured on count for declaratory relief regarding insurer’s failure to provide declarations page, policy and PIP log to provider presuit
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant(s), vs. RURAL METRO CORPORATION, As Assignee of Frank Cipris, Appellee(s). Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 05-76-AP. L.C. Case No. 04-SC-3362. June 28, 2007. Appeal from County Court, Seminole County, Honorable John R. Sloop. Counsel: Dale T. Gobel, Drage, deBeaubien, Knight, Simmons, Mantzaris & Neal, L.L.P., Orlando, for Appellant. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Appellee.
CORRECTED OPINION
(DICKEY, A., J.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals an order entering summary judgment in favor of Rural Metro Corporation (“Rural Metro”). Pursuant to the reasoning provided herein, the order entering summary judgment is reversed.
In this case, Frank Cipris, an insured of the Appellant, State Farm, was involved in an automobile accident on February 24, 2004. On February 25, 2004, Appellee/Rural Metro procured Cipris’ signature on a document entitled, “Emergency v. Non-Emergency Coding for Medicare Claims.” The document provided:
I, the undersigned, hereby authorize all benefits to be made payable directly to Rural/Metro Medical Services . . . I authorize any holder of medical information or documentation about me to be released to the Health Care Finance Administration and its agents and carriers as well as Rural/Metro any information or documentation needed to determine these benefits payable for related services or any services provided to me by Rural/Metro now or in the future. I hereby approve release of information including diagnosis to Rural/Metro from any hospital, doctor or other health care provider, for claims of insurance benefits. I authorize any holder of medical information or documentation about me to be released to the medical director or Rural/Metro Medical Services or their authorized agent for purposes of quality assurance or research. I understand that I am financially responsible to Rural/Metro for charges not covered by this authorization or denial by insurance carrier and do hereby guarantee payment in full of the bill. I have been advised that this transport may be deemed not medically necessary and I accept responsibility for payment. I have been advised that I may be responsible for any unpaid portion not covered by Medicare, Medicaid, or other insurance. I further agree that if collection is made by court or otherwise, I agree to pay all collection costs including reasonable attorney’s fees.
Thereafter, Rural Metro transported Cipris from his treating hospital to a rehabilitation center.
Rural Metro submitted a bill to State Farm in the amount of $823.77, and State Farm did not pay the bill within thirty days. Rural Metro mailed State Farm a notice of intent to initiate litigation for State Farm’s failure to make payment for the services rendered on behalf of Cipris. Additionally, Rural Metro requested insurance information including: the name of the insurer; the name of each insured; the limits of liability coverage; statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement; and a copy of the policy. State Farm responded to the demand letter by indicating that Rural Metro’s bill would not be paid, “as all benefits exhausted with payment to hospital per hospital lien.” Thereafter, Rural Metro requested that State Farm provide a copy of the insurance policy, the declarations page, and a PIP payout ledger. State Farm did not respond to the request.
Rural Metro filed a two-count complaint against State Farm for breach of contract, Count One; and declaratory relief, Count Two. State Farm moved to dismiss the complaint, but did not notice a hearing and later, filed an Answer and Affirmative Defenses. Thereafter, Rural Metro moved for summary judgment as to Count Two, declaratory relief, contending that State Farm was required to provide, pre-suit, a declarations page, policy, and PIP log.
At the hearing on the motion for summary judgment, State Farm asserted that it obtained Frank Cipris’ affidavit. Cipris stated in his affidavit that he reviewed the document entitled “Emergency vs. Non-Emergency Coding for Medicare Claims,” and that by executing the document, he did not authorize Rural Metro to file suit against State Farm under the terms of his policy. Cipris also stated in his affidavit that he made payment to Rural Metro in the amount of $500.00.
The trial court stated that Cipris’ affidavit had not been filed, and it did not consider Cipris’ affidavit. The trial court entered summary judgment in favor of Rural Metro as to Count Two for declaratory relief. The trial court found that the “Emergency vs. Non-Emergency Coding for Medicare Claims” constituted an assignment of benefits and thus, the Plaintiff had standing to commence litigation against State Farm. State Farm filed a motion for rehearing, and the trial court denied the motion for rehearing. Subsequently, this appeal ensued.
On appeal, State Farm raises numerous issues of which only one merits review.1 State Farm contends that the trial court erred in not considering Cipris’ affidavit. State Farm served Rural Metro with the affidavit two business days prior to the hearing. However, the trial court refused to consider the affidavit because the affidavit was not in the court file.
Rule 1.510 provides:
The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant’s attorney no later than 5:00 p.m. two business days prior to the day of the hearing.
Rule 1.510 requires that the adverse party serve the affidavit upon opposing counsel, and it does not require that the adverse party file the opposing affidavit. See Burton v. GOV Contracting Corporation, 552 So. 2d 293 (Fla. 2d DCA 1989) (the rule requires serving the affidavit prior to the day of the hearing and has no requirement regarding the filing of the affidavit). At the hearing, counsel for Rural Metro indicated that State Farm delivered the affidavit to her office on a Friday, which was two business days prior to the day of the hearing. Therefore, it was error for the trial court to not consider the affidavit where State Farm complied with Rule 1.510 by timely serving opposing counsel with a copy of Cipris’ affidavit.
Furthermore, the Emergency v. Non-Emergency Coding for Medicare Claims document does not provide that Cipris relinquished his rights or that Rural Metro accepted an assignment. The document clearly states:
I understand that I am financially responsible to Rural/Metro for charges not covered by this authorization or denial by insurance carrier and do hereby guarantee payment in full of the bill. I have been advised that this transport may be deemed not medically necessary and I accept responsibility for payment. I have been advised that I may be responsible for any unpaid portion not covered by Medicare, Medicaid, or other insurance. I further agree that if collection is made by court or otherwise, I agree to pay all collection costs including reasonable attorney’s fees.
Upon consideration of the affidavit, Cipris asserted in his affidavit that he did not authorize Rural Metro to file suit against State Farm under the terms of his policy, and that he personally made payments to Rural Metro in the amount of $500.00. Additionally, to the extent that Rural Metro could argue that an equitable assignment occurred, the parol evidence of Cipris’ affidavit disputes this. Compare Progressive Express Insurance Company v. Rural Metro Ambulance, Inc., as assignee of Ashley Billings, No. 04-105-AP (Fla. 18th Circuit October 31, 2005) [14 Fla. L. Weekly Supp. 529a] (where assignor provided deposition testimony that she intended an assignment of benefits, there clearly existed case law supporting the position that an equitable assignment of benefits is reasonable where parol evidence demonstrates an intent to assign and an acceptance of the assignment). Therefore, Rural Metro was not entitled to summary judgment as to Count Two.
Accordingly, the order entering summary judgment in favor of Rural Metro is REVERSED, and the case is REMANDED for proceedings consistent with this opinion.
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1This Court notes the voluminous file created over an $862.00 PIP claim, of which the insured paid $500.00.
