16 Fla. L. Weekly Supp. 1198a
Online Reference: FLWSUPP 1612SILV
Insurance — Personal injury protection — Standing — Assignment — Validity — There is no requirement that assignee sign assignment — Lack of consideration for assignment is defense that can be raised by parties to assignment, not by insurer — Demand letter — Where presuit demand letter and all pleadings clearly indicate that provider submitted demand letter and has brought action in its name, doing business under two registered fictitious names, and insurer’s adjuster acknowledged that both names are provider’s DBAs, demand letter is substantially compliant with PIP statute — Examination under oath — Failure to attend — Insurer waived right to deny benefits based on failure to attend EUO that insurer voluntarily cancelled and rescheduled — Moreover, insured had no duty to attend EUOs scheduled to be conducted after insurer had withdrawn benefits based on independent medical examination
SILVERMAN, WENDER, KOONIN, EPSTEIN, GARCIA & ROZENCWAIG, P.A. d/b/a Aventura Orthopedicare Center, and d/b/a Orthopedic Care Center, and d/b/a Orthopedic Care & Sports Medicine Center a/a/o Maria Kelly, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-009831 COCE 54. May 1, 2009. Lisa Trachman, Judge. Counsel: Henry R. Crouser, for Plaintiff. Nicholas A. Zacharewski, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on hearing on Defendant’s Motion For Summary Judgment and the Court, having reviewed same; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises finds as follows:
1. Defendant’s Motion for Summary Judgment as to Standing is DENIED. The Plaintiff had standing at the inception of this action.
2. Plaintiff has shown through its pleadings, the deposition testimony of the Defendant’s adjuster, and the Notice of Filing of Copies of the Proof of Ownership/Registration of Fictitious Name that it does business as Orthopedic Care Center, among other fictitious names.
3. Defendant’s contention that the assignment is not signed by the Plaintiff’s representative is not well-founded and is without merit. In the case of Artibonite Injury Care Center a/a/o Leger v. New Hampshire Indemnity Co., 15 Fla. L. Weekly Supp. 188b, (Broward County), the Hon. Terri-Ann Miller held that “[a]s for signatures of witnesses, or the provider itself, there is no requirement for same. . .”
4. Defendant’s contention that the assignment fails to state any consideration for said assignment of benefits is also misplaced and without merit. It is well settled in Florida that challenging lack of consideration. in an assignment action is the privilege of the assignor. This is a defense to be asserted as between the parties to the assignment, not third parties. Allstate v. BMW Enterprise, 9Fla. L. Weekly Supp. 95a (17th Cir. Appellate)(citing Hendricks v. Stark, 126 So. 293 (Fla. 1930); McCampbell v. Aloma Nat’l Bank, 185 So. 2d 756 (Fla. lst DCA 1966).
5. Defendant’s Motion for Summary Judgment as to Non-Compliant Demand Letter is DENIED. The Plaintiff’s pre-suit demand letter is substantially compliant with the requirements of Florida Statute 627.736.
6. The bills at issue in this ease were submitted by Aventura Orthopedicare Center, one of the Plaintiff’s registered fictitious names, the assignment of benefits was on a form bearing the name Orthopedic Care Center which is also one of Plaintiff’s registered fictitious names. The pre-suit demand letter and all the pleadings in this case clearly show that the Plaintiff submitted its pre-suit demand and has brought suit as Silverman Wender Koonin Epstein Garcia & Rozencwaig, P.A. d/b/a business as Aventura Orthopedicare Center and d/b/a Orthopedic Care Center, etc. Additionally, the Defendant’s adjuster acknowledge in deposition that Aventura Orthopedicare Center and Orthopedic Care Center were both Plaintiff’s DBA’s (doing business as names).
7. Defendant’s Motion for Summary Judgment on EUO No-Show is DENIED. Ms. Kelly did not unreasonably fail to attend scheduled examinations under oath.
8. Review of the relevant portions of the record reflect that Maria Kelly did not have an appointment to appear at an Examination Under Oath on May 20, 2007. Further review reveals that the actual date in question was May 30, 2007. Contrary to Defendant’s motion, Maria Kelly did not fail to appear for an examination under oath as such appointment was voluntarily canceled by Defendant and rescheduled for June 4, 2007 BEFORE the May 30, 2007 appointment. Ms. Kelly cannot unreasonably refuse to appear for an appointment that was cancelled. Further contrary to Defendant’s motion, Defendant was contacted by Ms. Kelly’s attorney prior to the scheduled appointment and requested that it be canceled and rescheduled. Pursuant to Ponders v. Fortune Insurance Co., 578 So. 2d 1129 (Fla. 3d DCA 1991), an insurer waives its right to deny PIP benefits based on a refusal to attend a scheduled examination when it voluntarily rescheduled for a later date. Here, the insured did not fail to attend a scheduled appointment because such appointment was cancelled prior to the scheduled date and time and rescheduled for a later date, June 4, 2007.
9. Review of the record further reveals that Ms. Kelly attended an independent medical examination on May 25, 2007 and that based on such examination, her PIP benefits were discontinued effective May 25, 2007, BEFORE the May 30, 2007 examination under oath and before the June 4, 2007 examination under oath. Pursuant to Peachtree v. Walden, 759 So. 2d 7 (Fla. 5th DCA 2000), the Defendant breached its contract with Ms. Kelly as of May 25, 2007 and as such she was no longer required to comply with the terms and conditions of the subject contract, including the requirement that she appear for examination under oath.
