15 Fla. L. Weekly Supp. 880b
Insurance — Personal injury protection — Standing — Assignment — Insurer’s tender of payment to medical providers after insured filed suit does not amount to confession of judgment such that insurer waived standing defense against insured who assigned benefits to providers — Record does not support insured’s argument that providers reassigned cause of action to her and she remained responsible for payment
PEACHTREE CASUALTY INS. CO., Appellant, vs. VOLANDA RUCKER, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 07-5607, Division X. L.C. Case No. 03-10042. June 4, 2008. On review of a final judgment of the County Court, Hillsborough County. The Hon. Charlotte Anderson presiding. Counsel: Gregory J. Blackburn and Dorothy Venable DiFiore, Haas Dutton, et al. P.A., Tampa, for Appellant. Michael P. Maddux, Tampa, for Appellee.
(CHET A. THARPE, J.) Appellant Peachtree Casualty Insurance Company (the insurer) appeals the final summary judgment the trial court entered in favor of Appellee Volanda Rucker (Rucker) on the grounds that the insurer had both constructively denied Rucker’s claims and confessed judgment by ultimately paying the claims while the suit was pending. Because we conclude that Rucker lacked standing to sue, we reverse the decision of the trial court. Our review of a summary judgment is de novo.1
On or about May 11, 2002, Rucker was injured in an automobile accident in which she was the passenger of the insured driver. Unbeknownst to the insurer, she executed assignments in favor of her healthcare providers and obtained treatment for her injuries. When the insurer failed to pay the claims, Rucker retained counsel. Prior to the filing of the lawsuit, counsel corresponded with the insurer to determine the status of the payments. According to correspondence in the record, the insurance company replied that the matter was under investigation. In other correspondence, the insurer sought information from Rucker, specifically, her residence at the time of the accident. According to the terms of the driver’s policy, the policy covered passengers only if they did not reside with an insured vehicle owner. Apparently, there was conflicting information about Rucker’s residence. The information given to her healthcare providers indicated that she lived with her father, an insured vehicle owner. Rucker delayed giving a statement to the insurer, but when she did, her given residence differed from information she had furnished to her healthcare providers. Also, Rucker did not disclose the fact that she had executed assignments of her benefits to the healthcare providers. Ultimately, Rucker filed suit against the insurance company. During the pendency of the lawsuit, the insurer paid the claims in their entirety, along with statutory interest and penalties — not to Rucker, but to her healthcare providers.
Notwithstanding the insurer’s discovery of the assignments of her benefits, which would normally divest her of standing to sue or to maintain the suit,2 Rucker asserted in the trial court, and the trial court agreed, that the insurer waived or abandoned its defenses, including the standing defense, by paying the claims. This was error. The fact that the insurer tendered payment to the healthcare providers does not amount to a confession of judgment such that the insurer waived the standing defense. See Schuster v. Blue Cross and Blue Shield of Florida, Inc., 843 So. 2d 909, 912 (Fla. 4th DCA 2003). In Schuster, the appellate court specifically stated that “in view of the assignments, at best, the Schusters succeeded only in forcing BCBSF to fulfill obligations in which the Schusters no longer had an interest” and held that “BCBSF’s payment of the claims in this case did not amount to a confession of judgment to the Schusters’ lawsuit.” This is exactly what happened here.
Rucker argues that the healthcare providers re-assigned her cause of action back to her, if only by virtue of the fact that the healthcare providers did not pursue the claims they possessed against the insurer, and she remained responsible for payment. This statement is not supported by the record. Because we must reverse on the standing issue, it is unnecessary for us to address the remaining issues. It is therefore
ORDERED that the decision of the trial court is REVERSED. (PENDINO and HONEYWELL, JJ., Concur.)
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1Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000).
2Progressive Express Ins. Co. v. McGrath, 913 So. 2d 1281 (Fla. 2d DCA 2005) (the assignment of PIP benefits is not merely a condition precedent to maintain an action on a claim held by the person or entity who filed the lawsuit. Rather, it is the basis of the claimant’s standing to invoke the processes of the court in the first place. If the insured has assigned benefits to the medical provider, the insured has no standing to bring an action against the insurer, citing Livingston v. State Farm Mut. Auto. Ins. Co., 774 So.2d 716, 718 (Fla. 2d DCA 2000)).
