16 Fla. L. Weekly Supp. 339b
Online Reference: FLWSUPP 164AROCH
Insurance — Personal injury protection — Standing — Assignment — Document that uses words “assignment of benefits” in title and body, but which expressly refers to direct payment provision of PIP statute and does not expressly transfer cause of action, is qualified assignment that transferred only right to receive payment from insurer — Provider does not have standing to pursue suit — Insurer’s motion for summary judgment granted
ADVANCE HEALTH CENTER, a/a/o JACQUELINE AROCHE, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-9529 CC 23 01, Civil Division. January 28, 2009. Myriam Lehr, Judge. Counsel: Jonathan Warrick. Karen E. Trefzger. Thomas L. Hunker, United Automobile Insurance Co., Office of the General Counsel, Miami.
REVERSED at 17 Fla. L. Weekly Supp. 982a
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard before this Court on Monday, January 12, 2009 upon Defendant’s Motion for Final Summary Judgment on the Issue of Plaintiff’s Lack of Standing, and this Court having heard argument of counsel, having reviewed the court file and being otherwise duly advised in the premises, it is hereupon,
ORDERED AND ADJUDGED as follows:
1. This is an action for the alleged breach of an automobile insurance contract brought by the Plaintiff, ADVANCE HEALTH CENTER, as an alleged assignee of the Personal Injury Protection benefits held by Jacqueline Aroche, in a policy of insurance issued by the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
2. The Plaintiff alleges in paragraph 8 of its Amended Complaint, that Jacqueline Aroche “equitably assigned to Plaintiff and also executed a written assignment of benefits,” to Plaintiff.
3. The Plaintiff attached the alleged assignment to its presuit demand letter and its Amended Complaint, and the Defendant has filed it with the Court together with Defendant’s Motion for Final Summary Judgment.
4. The language of the alleged assignment of benefits is clear and unambiguous.
5. The alleged assignment reads:Assignment of Benefits
The undersigned patient hereby assigns the benefits of insurance with United Auto insurance company to Advance Health Center for services rendered to the undersigned patient and covered by personal injury protection (PIP) under Sergio Aroche policy with United Auto Ins. and in accordance with Florida Statute § 627.736(5).
The undersigned further agrees to pay any applicable deductible or co-payment not covered by PIP insurance coverage.
The undersigned hereby accepts assignment of insurance benefits for services rendered to Jacqueline Aroche and to be paid directly to me under Sergio Aroche personal injury protection (PIP) coverage with United Auto insurance company and in accordance and in accordance (sic) with Florida Statute § 627.736(5).
(Emphasis added).
6. Defendant maintains that the above quoted language constitutes a qualified assignment or a mere direction to pay and not an assignment of the cause of action.
7. The Court agrees with Defendant. “A mere agreement to pay a debt out of a designated fund does not operate as a legal or equitable assignment, since the assignor retains control over the subject matter. . . . Such an agreement amounts only to a mere promise to pay, and does not meet the test of an intention on the part of the assignor to give, and of the assignee to receive, present ownership of the fund.” Health Application Sys., Inc. v. Hartford Life & Acc. Ins. Co., 381 So. 2d 294, 297 (Fla. 1st DCA 1980) (construing purported assignment agreement as a matter of law and determining that no valid assignment had been created).
8. In the instant case, the assignment expressly refers to the direct payment provision of the PIP statute. § 627.736(5)(a) (“the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment”) (emphasis added). Subsection (5) does not mention assignments. Rather, it refers to an insurer’s direct payment to the medical provider. Thus, by its own terms, the document at issue is a qualified assignment which transferred only the right to receive payment from the Defendant.
9. Plaintiff has not filed any affidavits or submitted any evidence which would create an issue of material fact as to whether the insured intended to assign her cause of action to Plaintiff.
10. This Court confronted an alleged assignment containing similar language in Cicero Ortho-Med Center, Inc. a/a/o Caridad Quintana v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 365a (Miami-Dade County Jan. 27, 2006). In Cicero, the Court granted the defendant’s motion for summary judgment on the issue of standing. The Court reasoned:
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).
If a party is to give up a right or benefit it should be unambiguously stated within the four corners of the document. South Brevard Chiropractic & Wellness vs. Progressive Southeastern Insurance Company, 12 Fla. L. Weekly Supp. 260a (2004).
Merely using the words “Assignment of Benefits” in the title and the body of the document, without more, is not sufficient to transfer rights in a policy of insurance to a third party. Nile R. Lestrange, MD vs. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 155a (2003).
In order for a non-contracting third party to have standing to sue on a policy of insurance, the agreement assigning the rights of the insured to the third party must contain sufficient language indicating that the assignor is assigning his or her right to bring direct action against the insurer, or in the alternative, language assigning all of the insured’s benefits or rights under the contract.
The unambiguous language of the document relied upon by the Plaintiff for standing in the instant case indicates that the only benefit which has been assigned to the Plaintiff is the right to collect payment directly from the insurer.
The Court finds that the document relied upon by the Plaintiff for standing titled “Assignment of P.I.P. Benefits” is by its plain language merely a direction to the insurer to pay benefits directly to CICERO ORTHO-MED CENTER, INC., and does not assign to the Plaintiff the necessary rights to proceed in litigation directly against the insurer for breach of contract.
(Emphasis added) (paragraph numbers omitted).
9. Numerous reported decisions are in accord with the reasoning of Cicero. See e.g., Bohica Orthopaedics & Rehabilitative Medicine a/a/o Leanne Seals v. Progressive Southeastern Ins. Co., 10 Fla. L. Weekly Supp. 851b (Fla. 7th Circuit Appellate June 17, 2003) (holding that medical provider did not have standing to initiate lawsuit for PIP benefits where insured did not assign her “right of property or interest in” the automobile insurance contract); Physician’s Injury Center a/a/o Richard Dietrich v. Progressive Express Ins. Co., 9 Fla. L. Weekly Supp. 169a (Fla. 13th Circuit Appellate Jan. 17, 2002); Artau v. State Farm Mut. Auto. Ins. Co., 6 Fla. L. Weekly Supp., 679a (Fla. 13th Circuit Appellate May 19, 1999); South Brevard Chiropractic & Wellness a/a/o Teka Reed v. Progressive Southeastern Ins. Co., 12 Fla. L. Weekly Supp. 260a (Brevard County Nov. 29, 2004) (“If a party is to give up a right or benefit it should be unambiguously stated within the four corners of the document.”); Nile R. Lestrange, M.D. a/a/o Jennifer Dipanni v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 155a (Broward County Dec. 1, 2003) (explaining that the distinction between an unqualified assignment of the cause of action and a mere direction to pay “is of critical importance, because an insurer can be penalized if it improperly pays the wrong party”); Michael A. Abrahams, M.D., P.A. a/a/o Rachel Newell, 11 Fla. L. Weekly Supp. 934b (Broward County June 14, 2004) (“[T]he document in question in the instant case is insufficient to operate as legal or equitable assignment. Simply authorizing a third party to receive payment does not make that third party either an equitable assignee or an intended beneficiary of any contract.”); Orthopaedic Associates of South Broward, P.A. a/a/o Georgianna McCarthy-Walker v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 565a (Broward County Apr. 22, 2003) (granting insurer’s motion to dismiss complaint for lack of standing where “the document attached to the complaint is not an assignment of benefits, but merely the functional equivalent of a direction to pay/authorization for direct payment”); MDR Chiropractic a/a/o Melissa Anderson v. Progressive Express Ins. Co., 9 Fla. L. Weekly Supp. 328a (Palm Beach County Mar. 14, 2002) (granting insurance company’s motion to dismiss complaint) (“In reviewing the document in the instant case, the Court finds that it is unambiguous and finds that it is a direction to pay. Here, the plain language of the document is not indicative of the parties’ intent to create an assignment.”).
Because the alleged assignment at issue in this case did not transfer the cause of action to Plaintiff, it does not have standing to pursue this lawsuit. Accordingly, Defendant’s Motion for Final Summary Judgment is GRANTED.
IT IS HEREBY ADJUDGED that Plaintiff, ADVANCE HEALTH CENTER, shall take nothing by this action and Defendant United Automobile Insurance Company, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax fees and costs.
