15 Fla. L. Weekly Supp. 1213c
Insurance — Personal injury protection — Standing — Assignment — Where assignment explicitly states that it does not assign any cause of action, medical provider lacks standing to bring suit for PIP benefits — Further, provider failed to satisfy condition precedent to bringing suit by failing to submit valid demand letter where assignment attached to demand letter did not confer right to bring suit
OROZCO MEDICAL CENTER, INC., a/a/o ALEJANDRA MERCADO, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil. Case No. 08-CC-012700-H. October 2, 2008. Eric H. Myers, Judge. Counsel: Timothy A. Patrick, for Plaintiff. Michael P. Liebgold, Luks, Santaniello, Perez, Petrillo & Gold, Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED UPON THE PLAINTIFF’S LACK OF STANDING
THIS CAUSE came before the Court for hearing on September 25, 2008 upon Defendant’s Motion for Summary Judgment Based Upon the Plaintiff’s Lack of Standing, and the Court having been otherwise duly advised in the premises, it is hereupon, ORDERED AND ADJUDGED:
1. The Plaintiff/healthcare provider alleged standing to have filed this suit on the basis of accepting an assignment of benefits from the Defendant PIP insurer’s insured, Alejandra Mercado.
2. However the document that the Plaintiff/healthcare provider relies upon for standing to have filed this suit on behalf of Alejandra Mercado explicitly states that Ms. Mercado did not assign the right to bring suit. More specifically, while the text of the subject document appears in lower case, the following clause appears in upper case to make it stand out: “THIS DOCUMENT CONSTITUTES AND ASSIGNMENT OF BENEFITS AND IS NOT AN ASSIGNMENT OF ANY CAUSE OF ACTION.” See Exhibit “A” to the complaint/petition. The insured, therefore, was the only one authorized to file suit. See Abby Chiropractic Center, a/a/o Linda Leonard v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 50b, (Fla. 13th Circ. Hillsborough Cty. Ct. 2003). As there was no conveyance by the insured to the Plaintiff of the right to bring suit to enforce any right under the policy of insurance, the insured retained all rights under its policy of insurance. Comprehensive Physicians Group a/a/o Tiffany Smiley v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 1056a (Fla. 18th Circ. Seminole Cty. Ct. 2003). In fact, the assignment document expressly carved out an exception to what was being assigned, i.e. any cause of action, or right to have brought this suit.
3. The aforementioned document is clearly worded, and explicitly does not assign the right for the Plaintiff/healthcare provider to have brought this suit. See Florida Emergency Physicians Kang & Associates, M.D., P.A., a/a/o Chris Schrack v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 479a (Fla. 9th Circ. Orange Cty. Ct. 2005). Further, the document specifically excludes the right to bring “any cause of action.”
4. As the aforementioned document is clearly worded, this Court will not look outside of the four corners of the document, adhering to Florida’s Parol Evidence Rule. As the language of the document is clearly written and contains no ambiguities, the Court must construe it by looking solely to the four corners of the document. Burns v. Barfield, 732 So. 2d 1202, 1205 (Fla. 4th DCA 1999), citing Misala, Inc. v. Eagles, 662 So.2d 1389 (Fla. 4th DCA 1995).
5. The aforementioned agreement was provided by the Plaintiff and any inconsistencies or ambiguities within it are to be held against the drafter of that agreement. Goodwin v. Blu Murray Insurance Agency, Inc., 939 So.2d 1098, 1102 (Fla. 5th DCA 2006), Lindquist v. Burlow, 123 So.2d 261 (Fla. 2nd DCA 1960), Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3rd DCA 1964), Finberg v. Herald Fire Ins. Co., 455 So.2d 462 (3rd DCA 1984), Haueter-Herranz v. Romero, 975 So.2d 511, 517 (Fla. 2nd DCA 2008), American Agronomics Corp. v. Ross, 309 So.2d 582, 584 (Fla. 3rd DCA 1975).
6. As such, this Court will not rewrite the agreement entered into between the Plaintiff and Alejandra Mercado. Construction of an unambiguous contract is a matter of law. Burns v. Barfield, 732 So. 2d 1202, 1205 (Fla. 4th DCA 1999), Peacock Construction Co., Inc. v. Modern Air Conditioning, Inc., 353 So.2d 840, 842 (Fla. 1977), Cushman & Wakefield of Florida, Inc. v. Williams, 551 So.2d 1251, 1254 (Fla. 2d DCA 1989).
7. Under Florida law, only one person or entity can possess standing to bring forth a claim in regard to Personal Injury Protection (PIP) Coverage. Oglesby v. State Farm, 781 So.2d 469 (Fla. 5th DCA 2001), Rose Radiology Centers, Inc. (a/a/o David Hill) v. Progressive Auto Pro Ins. Co., 12 Fla. L. Weekly Supp. 1091a (Fla. 13th Jud. Circ. Hillsborough County Ct., August 18, 2005), Cletrus Smith v. State Farm, 14 Fla. L. Weekly Supp 810b (6th Jud. Cir. Appel. Ct., July 9, 2007); Hartford Ins. Co. v. O’Connor, 855 So.2d 189 (Fla. 5th DCA 2003).
8. To establish such standing under a breach of contract action alleging the failure of an insurer to pay certain PIP benefits, a provider must demonstrate that it has a valid assignment giving it the right to bring a cause of action at the time the cause of action is filed. Fortune Insurance Co. v. Lugo, 7 Fla. L. Weekly Supp. 435 (Fla. 11th Cir. Ct. April 4, 2000); See also Shackelford v. Old Dominion Insurance Co., 6 Fla. L. Weekly Supp. 335 (Fla. 20th Cir. Ct. Jan. 20, 1999) citing Meredith v. Long, 119 So. 114 (Fla. 1928); Florida Power & Light Co. v. System Council U-4 of Intern. Broth. of Elec. Workers, AFL-CIO, 307 So. 2d 189 (Fla. 4th DCA 1975). In any cause of action, a Plaintiff must establish standing before the court has any authority to entertain the Plaintiff’s action. Standing cannot be created by waiver, acquiescence, agreement of the parties, by error inadvertence of the parties or their counsel, or by exercise of power by the court. State ex rel. Caraker v. Amidon, 68 So. 2d 403 (Fla. 1953); See also Polk County v. Sofka, 702 So. 2d 1243 (Fla. 1997); Marion Correctional Institution v. Kriegel, 522 So. 2d 45 (Fla. 5th DCA 1998) rev. denied 531 So. 2d 1354 (Fla. 1988) citing Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969).
9. Without standing to have filed this suit, this Court lacks subject matter jurisdiction over this case. Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So.2d 1281, 1285 (Fla. 2d DCA 2005). Furthermore, standing cannot be cured post-suit in a PIP case. Id.
10. In addition, the Plaintiff failed to satisfy a condition precedent to bringing this suit by failing to submit a valid PIP pre-suit demand letter by virtue of attaching the aforementioned document to its PIP pre-suit demand which, as discussed above, withholds the right for the Plaintiff to bring this cause of action.
LEGAL STANDARD FOR AN ENTRY OF SUMMARY JUDGMENT
11. Pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, Summary Judgment is proper when there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law. Summary judgment is an appropriate and necessary means of terminating litigation short of a jury trial and it satisfies the constitutional right of access to the courts as a means of resolving civil disputes. Cassel v. Price, 396 So. 2d 258, 262 (Fla. 1st DCA 1981), review denied, 407 So. 2d 1102 (Fla. 1981). “So long as our system of laws recognizes a dividing line between conduct which may properly require a party to be subjected to the burden of trial and the risk on an adverse jury verdict for damages, and conduct which will not, the trial and appellate courts often have a duty, difficult as the task may be, of drawing that line.” Id. at 261.
12. Summary judgment is properly granted where the moving party conclusively demonstrates that no genuine issues of material fact exist between the parties and that the moving party is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).
13. Here, as detailed above, the document the Plaintiff/healthcare provider relied on for standing to have brought this suit explicitly withheld the right to bring this cause of action. It is undisputed that the Plaintiff/healthcare provider relied upon the aforementioned document for standing to have brought this suit as it was referred to, pled, and attached to its own complaint.
WHEREFORE, as the Plaintiff/healthcare provider lacks the requisite standing to have brought this suit, the Defendant’s Motion for Summary Judgment Based Upon the Plaintiff’s Lack of Standing is hereby GRANTED. This Court reserves jurisdiction to determine the Defendant’s entitlement to its attorneys’ fees and costs and the amount thereof.
