19 Fla. L. Weekly Supp. 202c
Online Reference: FLWSUPP 1903HIGDInsurance — Personal injury protection — Standing — Assignment — Insured must execute separate assignment of benefits to medical provider for each claim in which benefits are sought — Provider with assignment from insured’s prior accident but no assignment from current accident did not have standing at time suit was filed — Provider’s motion for abatement is denied and summary judgment is entered in favor of insurer
NORTH FLORIDA MEDICAL CLINIC, INC., As assignee of FLORENCE HIGDON, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2009-SC-006481, Division A. May 25, 2010. Emmet F. Ferguson, III, Judge.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT RE: LACK OF STANDING,DENYING PLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT AND DENYING PLAINTIFF’SMOTION FOR ABATEMENT
THIS CAUSE came to be heard on May 4, 2010 on Defendant’s Motion for Summary Judgment and Plaintiffs Motion for Partial Summary Judgment and Plaintiffs Motion to Abate, pled in the alternative. Present before the Court appeared counsel for Defendant, James B. Eubanks, Esquire, with counsel for Plaintiff, Vincent P. Gallagher, Esquire. Having considered the arguments of counsel, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. On or about October 22, 2009, Plaintiff filed this lawsuit alleging that Defendant has failed to pay the full amount of Personal Injury Protection (“PIP”) Benefits due for services rendered by the Plaintiff, to the insured as a result of a June 16, 2009 motor vehicle accident. Specifically, Plaintiff has brought suit for non-payment of a single date of service, June 25, 2009.
2. On August 18, 2009, Plaintiff sent the Defendant a Pre-suit Demand Letter (“PSD”), purportedly in compliance with FLORIDA STATUTE § 627.736 (10).
3. FLORIDA STATUTE § 627.736 (10)(a), states, in pertinent part:
(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.
4. Additionally, FLORIDA STATUTE § 627.736 (10)(b)(1) states, “The notice required shall state. . .with specificity”:
(1) The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured. (Emphasis added)
5. The PSD demanded payment for PIP Benefits and attached a CMS 1500 Form to indicate the single date of service at issue. The PSD also attached an Assignment of Benefits (“AOB”) that was signed on November 6, 2008; several months prior to the subject June 16, 2009 motor vehicle accident. A true and accurate copy of Plaintiff’s PSD was attached to Plaintiff’s Complaint as Exhibit “B.”
6. The insured, Florence Higdon, was involved in a prior motor vehicle accident on December 31, 2008 and subsequently executed the November 6, 2008 AOB, granting the Plaintiff authority to seek payment under that claim. However, Plaintiff submitted the same AOB to Defendant for the subsequent accident that took place on June 16, 2009. Plaintiff has never submitted an AOB for the subject accident and the accompanying claim.
7. Defendant argued that each accident, and subsequent claim for PIP Benefits, results in a separate set of available PIP Benefits and therefore the Plaintiff must execute a separate AOB for each accident and accompanying claim. As such, Defendant asserted that for the subject June 16, 2009 accident, it never received a proper PSD with the required AOB, pursuant to FLORIDA STATUTE § 627.736 (10)(b)(1).
8. At the hearing, Plaintiff argued the fact that the relevant AOB pre-dated the subject accident, does not render the assignment invalid for subsequent claims. As support, Plaintiff presented case law Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. 5th DCA 1984 and Stacey Mochnick v. State Farm Mutual Automobile Insurance Company, 7 Fla. L. Weekly Supp. la in asserting that an assignment is irrevocable and that Courts’ regularly apply a standard of “equitable assignment” when determining the validity of an assignment.
9. In review of Plaintiff’s supporting case law, this Court finds both highly distinguishable from our set of facts. In the instant case, this Court is not presented with determining whether an assignment has been revoked, or if it is valid based on circumstances surrounding its execution. Instead, this Court is determining whether a single assignment of benefits exists in perpetuity for every claim made by the Plaintiff, under the insured’s insurance policy.
10. Just as the insured’s two automobile accidents had two different claim numbers, the Plaintiff must execute a separate AOB for each claim in which the benefits are sought. As such, the AOB attached to the Complaint only assigned the Plaintiff rights under the prior accident, not the subject accident.
11. Upon the occurrence of an automobile accident, the insured has the ability to assign his or her rights under the existing insurance policy, specifically the $10,000 PIP benefits. Upon the occurrence of a subsequent automobile accident, the insured retains the choice of whether or not to assign his or her rights. Under the subsequent claim, such rights are not automatically assigned to the medical provider pursuant to the prior assignment and prior claim.
12. In the alternative, Plaintiff’s counsel motioned the Court to grant an abatement. Therefore, allowing for the PSD to be corrected with a proper AOB, so as to comply with the required statutory provisions.
13. Defense counsel presented, Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324 (Fla. 3rd DCA, March 19, 2008) [32 Fla. L. Weekly D2891a], which states:
“In Florida, when a lawsuit is prematurely filed, the proper remedy at the trial level is an abatement or stay of the action. By definition, mere prematurity is curable simply by the passage of time. Litigation is also premature (and curable by abatement) where a plaintiff’s complaint is dismissed for failing to fulfill statutory administrative prerequisites prior to filing a legal action. Contrarily, the material breach of an insureds contractual duty to perform a condition precedent renders the insurance contract ineffective and relieves the insurer of its contract obligations. Similarly, where a plaintiff fails to comply with a statutory condition precedent, the lawsuit is not merely premature, and dismissal, not abatement is the proper remedy.” (Emphasis added)
14. In following, this Court further finds that abatement is not appropriate when a Plaintiff fails to comply with a statutory conditions precedent.
15. This Court finds that there are no genuine triable issues of fact; the evidence is clear that Plaintiff did not meet the necessary condition precedent at the time this suit was filed. Plaintiff did not have standing, as required by law, to bring this suit and therefore Grants Defendant’s Motion for Summary Judgment, without prejudice, Denies Plaintiffs Motion for Partial Summary Judgment and Denies Plaintiff’s Motion for Abatement any such further relief as this Court deems necessary and proper.
ORDERED AND ADJUDGED:
That Defendant’s Motion for Summary Judgment is hereby GRANTED.
That Plaintiff’s Motion for Partial Summary Judgment is hereby DENIED.
That Plaintiff’s Motion for Abatement is hereby DENIED.
* * *
