20 Fla. L. Weekly Supp. 649a

Online Reference: FLWSUPP 2007FORBInsurance — Personal injury protection — Standing — Assignment — Document that assigns benefits of insurance to medical provider for services rendered to insured and covered by PIP coverage “and in accordance with section 627.736(5)” creates valid assignment — Second clause stating that there has been compliance with statute does not alter first clause creating assignment — Where provider was not in compliance with fictitious name statute at time action was filed but subsequently came into compliance, noncompliance was cured, and provider could maintain suit from that point forward

RAPID REHABILITATION, INC., a Florida Corporation (assignee of Forbes, Cyrus), Plaintiff/Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant/Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-53845 CACE. L.C. Case No. 07-003088 COCE 52. February 8, 2012. Counsel: Russel Lazega and Yasmin Gilinsky, Florida Advocates, Dania Beach, for Plaintiff. Michael J. Neimand, Office of the General Counsel, Miami Gardens, for Defendant.

OPINION

(EADE, Judge.) THIS CAUSE came before the Court on Plaintiff/Appellant Rapid Rehabilitation, Inc.’s (“Rapid Rehab”) appeal from the County Court’s entry of Final Summary Judgment in favor of Defendant/Appellee United Automobile Insurance Company (“UAIC”). Upon consideration of the briefs submitted by the parties and the record, and being otherwise fully advised in the premises, the Court finds and decides as follows:

This is a suit for unpaid personal injury protection (PIP) benefits. Insured Cyrus Forbes was injured in a motor vehicle accident. Rapid Rehab provided medical services to the insured for his injuries. A resulting claim for personal injury protection (PIP) benefits was submitted to UAIC. Thereafter, Rapid Rehab filed a five-count complaint against UAIC for breach of contract for UAIC’s failure to pay for the medical services. Count V of the Complaint alleged breach of contract for failure to pay amounts owed. Counts II, III, and IV were voluntarily dismissed by Rapid Rehab. In its Answer and Affirmative Defenses, UAIC asserted the defense of lack of standing. Specifically, UAIC challenged the validity of the assignment executed by the insured and a representative of Rapid Rehab. UAIC’s First Affirmative Defense contended that Rapid Rehab did not have standing because the document purported to be the assignment of benefits was made to an unregistered fictitious entity and an unregistered corporation in violation of Florida Statute § 865.09(9) (“Fictitious Name Act”). UAIC’s Second Affirmative Defense contended that the purported assignment was nothing more than a direction to pay and thus, it failed to transfer the insured’s rights and benefits under the policy.

UAIC filed its motion for summary judgment alleging lack of standing as set forth in its First Affirmative Defense. On August 26, 2009, the motion for summary judgment was heard. At the hearing, in addition to arguing lack of standing because of violation of the Fictitious Name Act, UAIC put forth argument in support of its Second Affirmative Defense. The trial court rejected UAIC’s argument that there was no standing because of violation of the Act. The court concluded that Rapid Rehab had cured the defect by registering the fictitious name and therefore it could now maintain the suit. The court, however, agreed with UAIC that there was no valid assignment and only a direction to pay. The court based its decision on two references to Fla. Stat. § 627.736(5) in the purported assignment. Despite this favorable ruling, UAIC has seemingly abandoned that argument and conceded error in its Answer Brief. (“The trial court granted the Insurer’s standing summary judgment finding that the assignment of benefits was a direction to pay and did not give the Assignee the right to maintain a lawsuit for PIP benefits. This finding was erroneous.” (Resp’t Br. 8)).

UAIC is instead seeking that this Court affirm the summary judgment under the “Tipsy Coachman” doctrine, since it maintains that the trial court should have granted summary judgment based on its argument of lack of standing for violation of the Fictitious Name Act. Under the doctrine, “where the trial court reaches the right result, but for the wrong reasons, an appellate court can affirm the decision . . . if there is any theory or principle of law in the record which would support the ruling.” (citations and internal quotations omitted) Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) [35 Fla. L. Weekly S493a]; Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-645 (Fla. 1999) [24 Fla. L. Weekly S71a]. Despite UAIC’s apparent concession of error, the Court will nonetheless address both of UAIC’s arguments.

REVIEW OF SUMMARY JUDGMENT

The standard of review of a trial court’s ruling on a motion for summary judgment is de novo. Sulkin v. All Fla. Pain Mgt., Inc., 932 So. 2d 485, 486 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1619a]. In determining the propriety of the entry of summary judgment, this Court must resolve whether there is any genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Chhabra v. Morales, 906 So. 2d 1261, 1262 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1808b]; Fla. R. Civ. P. 1.510(c). “Summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.” Sulkin at 486. Furthermore, the Court must interpret every possible inference in favor of the non-moving party. Chhabra at 1262.

Likewise, construction and interpretation of a written instrument, as well as the validity of an assignment is a question of law subject to de novo standard of review. Mariner Cay Prop. Owners Assoc., Inc. v. Topside Marina, Inc., 714 So. 2d 1130, 1131 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1654c]; Miller v. Kase, 789 So. 2d 1095, 1097 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1633a]; Oper v. Air Control Prods., Inc. of Miami, 174 So. 2d 561, 564 (Fla. 3d DCA 1965). Thus, this Court “is not restricted in its ability to reassess the meaning and effect of a written instrument to reach a conclusion contrary to that of the trial court.” Hinely v. Fla. Motorcycle Training, Inc., 70 So. 3d 620, 623 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D1031b]. It is well settled that in Florida, “an insured may assign his right to benefits under a contract of insurance.” Schuster v. Blue Cross and Blue Shield of Fla. Inc., 843 So. 2d 909, 911 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]. An assignment is “the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein.” State Farm Fire and Cas. Co. v. Ray, 556 So. 2d 811, 812 (Fla. 5th DCA 1990).

The two issues in this cause are whether there is a valid assignment despite the reference to Fla. Stat. § 627.736(5) and whether Rapid Rehab lacks standing to maintain its action even after it complied with the Fictitious Name Act.

We begin our discussion with the first issue. The trial court found that the purported assignment was invalid and it was merely a direction to pay because it cited to Florida Statute §627.736(5). Subsection (5) of the PIP statute, titled Charges for treatment of injured persons, contains provisions regarding, among other things, reimbursement limits, billing requirements, the lawfulness and reasonableness of the treatment provided, and acknowledgments and disclosures. The relevant part of the purported assignment reads as follows:

The undersigned patient hereby assigns the benefits of insurance under the automobile insurance with United Automobile to DOUGLAS RAPID REHABILITATION, INC. for services rendered to the undersigned patient and covered by Personal Injury Protection (PIP) coverage under (Insured Name) Cyrus Forbes and in accordance with Florida Statute 627.736(5).

(emphasis added).

UAIC argued that because subsection (5) did not address assignment of benefits and only directions to pay, the whole document was a directive to pay. The court agreed and interpreted the specific inclusion of the subsection as determining the intent of the entire instrument. We find that the purported assignment is clear and unambiguous. Therefore, it “should be construed as written, and the court can give it no other meaning.” Inst. & Supermarket Equip., Inc. v. C & S Refrigeration, Inc., 609 So. 2d 66, 68 (Fla. 4th DCA 1992). Furthermore, “[w]here words of a contract are clear and definite, they must be understood according to their ordinary meaning.” Id. The paragraph in question is composed of two clauses separated by the conjunctive and. The first clause creates the assignment and the second clause indicates that there has been compliance with the requirements of the statute. Because of the conjunctive, the second clause referring to the statute does not alter the first clause; it adds to it. We therefore find that there was a valid assignment and reverse the trial court’s finding to the contrary.¹

As to the second issue, the trial court correctly concluded that Rapid Rehab’s noncompliance with the Fictitious Name Act had been cured and that from that point forward, it could maintain its lawsuit against UAIC. It is UAIC’s contention that once an entity is in noncompliance with the statute, it cannot subsequently cure the defect of lack of standing by complying with the statute after the action is filed. We disagree with that interpretation of the statute and we have not found any case that stands for that proposition. UAIC relies on Progressive Express Ins. Co. v. Hartley, 21 So. 3d 119, 121 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c]. We find the facts in that case distinguishable. Unlike Rapid Rehab, the entity in that case never complied with the statute. The language of the statute is clear. It states that “if a business fails to comply with [the statute], the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court of this state until [the statute] is complied with.” Fla. Stat. § 865.09(9)(a) (emphasis added). “Failure to comply with the statute is not a prohibition preventing activation of the jurisdiction of the trial court, but is an inhibition to maintain an action which would arise when the infirmity is timely called to the attention of the trial judge.” Cor-Gal Builders, Inc. v. Southard, 136 So. 2d 244, 246 (Fla. 3d DCA 1962). Furthermore, “compliance with the statute may be waived.” Roth v. Nautical Eng’g Corp., 654 So. 2d 978, 980 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1013a]. “Until the party instituting the action complies with the statute, the action will be abated.” Id.

We conclude that Rapid Rehab’s subsequent compliance with the statute allowed it to maintain its claim against UAIC.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Final Summary Judgment is hereby REVERSED and REMANDED for further proceedings consistent herewith.

__________________

¹It is worth mentioning that the trial court acknowledged error in a subsequent decision involving nearly the identical issue. Tri-County Spine Injury Center, Inc. f/k/a Holistic Healthcare Clinic, Inc. (Aides, Israel) v. United Auto Ins. Co., No.: 07-18844 COCE 52.

* * *