19 Fla. L. Weekly Supp. 190a
Online Reference: FLWSUPP 1903CHRIInsurance — Personal injury protection — Standing — Assignment — Where insured assigned benefits to medical providers, insured had no standing to bring suit against insurer for providers’ bills — Insured who lacked standing when complaint was filed did not later obtain standing when providers revoked assignments and reassigned benefits to insured
RHONDA LEE CHRISTIANSEN, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 2007-CA-16246-O-34. November 9, 2011. John Marshall Kest, Judge. Counsel: V. Rand Saltsgaver and Charles Parker, Jr., for Plaintiff. Wendy L. Pepper, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT AS TO ITS FIRSTAFFIRMATIVE DEFENSE AND DENYING PLAINTIFF’SAMENDED MOTION FOR SUMMARY JUDGMENTAS TO USAA’S FIRST AFFIRMATIVE DEFENSE
This matter came before the Court for hearing on November 1, 2011, on various Motions for Summary Judgment as to multiple affirmative defenses1, and the Court after hearing argument of counsel and having reviewed the memorandums and case law, and after taking the two Motions for Summary Judgment directed to the First Affirmative Defense under advisement, grants the Defendant’s, USAA, Motion for Summary Judgment and denies the Plaintiff’s, CHRISTIANSEN, Motion for Summary Judgment.
The specific issue in this motion involved the cost of medical treatment rendered by two providers, Physiotherapy Works, LLC, (WORKS) and Orlando Acupuncture, Inc. (ACUPUNCTURE) only. USAA asserted an affirmative defense on May 13, 2011, identified as “First Defense” which read, “Plaintiff lacks standing to bring this cause of action.” Each party alleges that the facts as to this issue are not in dispute and that each is entitled to a summary judgment as a matter of law on the facts as they are shown in the record on this affirmative defense.
Plaintiff alleges an injury in an automobile accident and for which she sought treatment. Two of the healthcare providers were WORKS and ACUPUNCTURE. USAA apparently denied payment of these bills under PIP asserting a denial of coverage2. The attorneys agreed that the treatment by these two healthcare providers was rendered prior to the issuance of the denial. The exhibits demonstrate that CHRISTIANSEN executed two assignment of her rights, one in favor of WORKS and one in favor of ACUPUNCTURE, on September 5, 2007. A lawsuit was eventually filed on December 6, 2007, by CHRISTIANSEN based on the denial3. The attorneys also agree that the claim for WORKS and ACUPUNCTURE were not specifically asserted in the initial complaint. In other words, at the time the original lawsuit was filed CHRISTIANSEN had already assigned her rights as to payment for the treatment provided by WORKS and ACUPUNCTURE.
“If the insured has assigned benefits to the medical provider, the insured has no standing to bring an action against the insurer.” Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281, 1285 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b] citing to Livingston v. State Farm Mut. Ins. Co., 774 So.2d 716, 718 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D533c] Noting that an assignment of PIP benefits is different than other assignments, such as construction liens, McGrath instructs that “[a]t any one time, only the insured or the medical provider “owns” the cause of action against the insurer for PIP benefits.” Citing Oglesby v. State Farm Mut. Auto Ins. Co., 781 So.2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a].
Plaintiff, without permission from the Court, supplemented her argument by filing with the Court a copy of the Statement of Particulars provided filed in January of 2008. She notes that even though she was aware of the bills and that they were outstanding, “. . . their bills were not part of the original complaint.4” Included with the letter was a copy of the case styled Progressive Express Ins. Co. v. Hartley, 21 So.3d 119 (5th DCA October 2009) [34 Fla. L. Weekly D2229c] apparently provided to show “. . .[p]laintiff had standing to include the bills from those providers at the time she amended her Complaint in March 2011.” The Progressive case is not helpful to the plaintiff. In Progressive, the treatment was rendered before the law suit was filed and the assignment was made when treatment was undertaken. While a reassignment was made by the healthcare provider back to the plaintiff, it was done in November 2003, before the original complaint was filed in January 2004. In CHRISTIANSEN the reassignment was made after the law suit was filed and was never mentioned in the original complaint. In addition, the assignment in Progressive was a non-existent assignment as “. . . the assignment was made to a non-existent entity.” Progressive5 120.
In that CHRISTIANSEN had no right, or standing, to make claims on behalf of WORKS and ACUPUNCTURE, the lawsuit proceeded on other matters in the PIP case6. On February 1, 2011, an employee of WORKS executed a revocation and reassignment of benefits to CHRISTIANSEN. On January 18, 2011, an employee of ACUPUNCTURE executed a revocation and reassignment of benefits to CHRISTIANSEN.
On April 21, 2011, CHRISTIANSEN amended her complaint to, among other things, bring claims for the monies owed to WORKS and ACUPUNCTURE. CHRISTIANSEN asserts that she now has standing because of the revocations and reassignments. One who does not have standing at the inception of the case can not cure the defect by acquisition of standing after the case has been filed. See Marianna & B.R. Co. Maund, 62 Fla. 538, 56 So. 670, 672 (1911), cited in McGrath at 1285. Standing is determined at the time the lawsuit is filed. Meredith v. Long, 119 So. 114 (Fla. 1928)
It has been argued that the complaint can be amended and the amendment would relate back under Fla. R. Civ. P. 1.190(c). However, “[t]his rule does not permit a party to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact.” McGrath 1286.
Plaintiff appears to allege that the revocations and reassignments by WORKS and ACUPUNCTURE meets the requirement of State Farm Fire and Casualty v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990); that the “revocation and reassignment” provides the authorization to bring the claim. Had the authorization (the revocation and reassignment) been provided prior to the original suit being filed, CHRISTIANSEN would have had standing to proceed with the lawsuit; but she did not. CHRISTIANSEN has attempted to correct her lack of standing, or to establish standing, after the fact, a procedure not permitted.7 The adding of the new claims, such as the claims arising out of the treatment by WORKS and ACUPUNCTURE are not simply additional damages, they are claims which by statute have certain pre-requisites with which there must be compliance prior to the filing of a lawsuit.
CHRISTIANSEN had no standing to bring the claims on behalf of WORKS and ACUPUNCTURE at the time of filing the initial lawsuit. The amendment to the complaint in 2011 was an attempt to assert new claims which she had only recently been assigned and have them relate back to the initial filing of the law suit when she did not have the right to bring those claims. With CHRISTIANSEN lacking standing as to this specific claims at the time the suit was filed, she can not now gain standing retrospectively to revitalize the claims that had no life at the time of filing the lawsuit.
Accordingly, the Defendant’s Motion for Summary Judgment on the First Affirmative Defense is hereby GRANTED. Conversely, Plaintiff’s Motion for Summary Judgment is hereby DENIED.
__________________
1Separate orders have been entered on the denial of the other various motions filed and heard.
2By letter of July 16, 2007, USAA indicated that base on information available “. . .we must deny your entire claim for benefits for material misrepresentation.”
3For whatever reason, plaintiff’s counsel and plaintiff sought not to bring the claims on behalf of WORKS and ACUPUNCTURE in the initial lawsuit. The records seems to suggest the claims were viable at the time in that treatment had been rendered, the bills rendered, and even the assignments made. Presumptively, WORKS and ACUPUNCTURE could have executed the revocations and reassignments prior to the Plaintiff’s filing of the initial lawsuit thereby allowing CHRISTIANSEN to bring the claim.
4Letter of V. Rand Saltsgaver date November 2, 2011.
5The Progressive court noted that “. . . if we were to accept Progressive’s argument, no party could bring an action against Progressive for the alleged unpaid PIP benefits.” Progressive 121. In this case, either heath care provider could have brought a cause of action on the assignments they held prior to reassigning the benefits back to the plaintiff — assuming they had the complied with the statutory prerequisites.
6As pointed out in defense counsel’s letter response dated November 7, 2011, which had been permitted by the Court, even though WORKS and ACUPUNCTURE’s claims had not been included in the original complaint, presumptively because they had been assigned, the plaintiff still attempted to raise these claims in (1) their responses to interrogatories (January 4, 2011) and (2) the deposition of Amanda Waldvogel on November 23, 2010.
7Plaintiff was free at any time to voluntarily dismiss her suit, obtain the revocation and reassignment, comply with conditions precedent and then refile her suit had she chosen to do so.
* * *
