20 Fla. L. Weekly Supp. 700a
Online Reference: FLWSUPP 2007TELSInsurance — Personal injury protection — Standing — Assignment — Motion to dismiss is not proper means to challenge standing — Where intent of insured and medical provider to enter into assignment is clear from provider’s action in bringing suit for PIP benefits and insured’s failure to bring suit or object to provider’s suit, there is equitable assignment — Assignment need not be signed by provider where provider accepted terms of assignment through provision of services — Document that authorizes insurer to make payments directly to provider, but states that insured remains responsible for any amounts not paid, is unqualified assignment
PROFESSIONAL DIAGNOSTIC READING A/A/O WILNEL TELSAINT, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-25761 COCE (55). April 16, 2013. Honorable Sharon Zeller, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Miami, for Plaintiff. Harris Kirsch, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS AS TO STANDING
THIS MATTER comes before the Court for hearing on April 10, 2013 on Defendant’s Motion to Dismiss. Defendant claims the assignment of benefits merely is a direction to pay and, therefore, does not confer standing on the Plaintiff to bring this suit for unpaid PIP benefits. The document states the patient “assigns the benefits of insurance” to Professional Diagnostic Reading. The document also states the “undersigned hereby accepts assignments of insurance benefits for services rendered to (Patient’s name).” The Court finds as follows:
1. Standing is an affirmative defense and not an issue of subject matter jurisdiction. Therefore, a proper medium through which the Defendant should challenge standing is a motion for summary judgment and not a motion to dismiss. Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a].
2. In this case, the patient signed a document titled “Assignment of Benefits” and assigned his “benefits of insurance” to the Plaintiff. The Plaintiff submitted its bills to the Defendant for payment, and upon its belief that it was not properly paid, the Plaintiff filed this lawsuit. The services at issue were rendered on or about April 28, 2009. In the (approximate) four years following the service date, the patient/assignor has neither filed a lawsuit for unpaid PIP benefits to Professional Diagnostic reading, nor objected to this lawsuit filed by the Plaintiff for said services. The Plaintiff attached the document at issue to the Complaint herein and is attempting to bring suit with proper standing by utilizing the subject Assignment of Benefits. In other words, the intent of the assignor/patient and assignee/medical provider to enter into an assignment is clear; therefore, there is, at least, the creation of an equitable assignment, which is sufficient to confer standing to the Plaintiff in this case. See, Digital Medical Diagnostics v. Allstate, 15 Fla. L. Weekly Supp. 1147b (Fla. 11th Circuit Ct.., October 2, 2008).
3. The Defendant also takes issue with the fact that the assignment was signed by the patient in this case, but not by the provider. An assignment of benefits is a unilateral contract that becomes binding upon an agreed upon performance by the promisee. Proof of assent is not necessary on the part of the promisee. It is sufficient if the required act is performed by him. City of Hollywood v. Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D163a]. Therefore, even though Professional Diagnostic Reading did not sign the document, it accepted the terms of the assignment through performance of its obligations, i.e. providing medical services. Again, this Court looks to the actions of the parties to determine intent. Further, since the Plaintiff is the party who performed the medical services at issue, the party that submitted the bill, the party who filed this lawsuit; and, the party that seeks to rely on the assignment of benefits, it is Professional Diagnostic Reading that is the real party in interest to best litigate the issues in this case.
4. Similarly in Schuster v. Blue Cross & Blue Shield of Florida, Inc., 843 So.2d 909 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a] the Schusters executed an assignment in favor of Martin Memorial Hospital. The language of the Martin Memorial Assignment authorized the insurer to make payment directly to the provider, but stated that the insured would remain financially responsible for any amounts not paid. The Fourth District Court of Appeals followed the Fifth District’s holding in Ray finding the Martin Memorial Assignment was an unqualified assignmentand served to eliminate the insured’s standing to bring a claim against the insurer.” (emphasis added).
ORDERED and ADJUDGED that Defendant’s Motion to Dismiss be, and is hereby DENIED.
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