20 Fla. L. Weekly Supp. 115b
Online Reference: FLWSUPP 2002LAUDInsurance — Personal injury protection — Standing — Assignment — Error to enter summary judgment in favor of medical provider where provider did not present competent evidence of existence of assignment that provider claims to have sent to insurer, but insurer denied receiving — Genuine issue of material fact exists as to whether proper assignment of benefits occurred
UNITED AUTO INSURANCE CO., Appellant, v. LAUDERDALE PHYSICIANS ASSOCIATION, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-396AP. L.T. Case No. 08-10621 CC 25. November 6, 2012. An appeal from the County Court of Miami-Dade County. Nuria S. Saenz, Judge. Counsel: Laura J. Edelstein, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
(Before RODRIGUEZ, GAYLES and BRENNAN, JJ.)
(BRENNAN, Judge.) THIS CAUSE is before this court on an appeal of a County Court order which granted Summary Judgment in favor of Lauderdale Physicians Association (hereinafter “LPA”) and denied Summary Judgment for United Auto Insurance Company (hereinafter “UAIC”). The plaintiff at the trial court level (and Appellee on appeal), Lauderdale Physicians Assoc., n/k/a DSE Health Systems, Inc. (“LPA”) filed a lawsuit against the Appellant (and Defendant below), United Automobile Insurance Co., (“UAIC”) to recover charges involving Personal Injury Protection medical services, rendered to the insured, Wilfred Julien (“Julien”), during calendar year 2003.1 At issue concerning the charges submitted for payment were two assignments associated with the claims: (1) the first assignment involved the transferring of Julien’s policy benefit rights to LPA, in exchange for medical services and the right to recover payment from UAIC; and (2) the second assignment involved the transferring of the original Julien/LPA assignment to LPA’s other business entity, DSE Health Systems, Inc. (“DSE”). Although a demand letter was issued to UAIC for payment of medical services administered to Julien, an assignment of benefits document was not attached to the demand letter evincing that an assignment did indeed occur. (LPA claims the assignment of benefits document was destroyed during Hurricane Wilma, although LPA asserts a previous copy was forwarded to UAIC).
As part of its defense, UAIC argues that LPA had no standing to sue since the medical provider did not submit evidence showing a proper assignment of rights under the policy had been properly effectuated. Both the Appellant and Appellee submitted motions for summary judgment. The trial court denied UAIC’s motion for summary judgment as to both assignment issues because: (1) UAIC failed to meet its burden of establishing that there were no genuine issues of material fact as to either assignment warranting a ruling in its favor; and (2) UAIC lacked standing to challenge the assignment between LPA and DSE. However, the trial court did grant LPA’s motion for summary judgment, concluding that no issue of material fact existed as it applied to the original Julien/LPA assignment. This appeal ensued.
Summary judgment is properly granted as a matter of law when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact. Fla. R. Civ. P. 1.510 (c). Each party moving for summary judgment has the burden of proving that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1996); Bloch v. Bershire Ins. Co., 585 So. 2d 1137, 1138 (Fla. 3d DCA 1991). The opposing party is not required to show the existence of a triable issue until the movant has successfully met its burden. Heitmeyer v. Sasser, 664 So. 2d 358, 359 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a]; Lake Sue Development Co., Inc. v. Keewin Real Property Co., 950 So. 2d 1280 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D786a]. Furthermore, it is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exists as to any material fact, with all reasonable inferences being drawn in favor of the opposing party. Moore v. Morris, 475 So. 2d 666, 558 (Fla. 1985).
Because LPA did not present competent evidence of a Julien/LPA assignment at the hearing on the cross motions for summary judgment (i.e. an affidavit from a witness to the assignment or a custodian of records), we find that summary judgment should not have been granted in favor of LPA as to that issue. Disputes between the litigants on whether a proper assignment of benefits has occurred is material, and therefore, summary judgment should not be granted. Gables Ins. Recovery, Inc. v. Seminole Casualty Ins. Co., 10 So. 3d 1106, 1107 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b].
CONCLUSION
For the reasons mentioned above, the ruling from the trial court below granting summary judgment in favor of LPA is REVERSED. This cause is REMANDED to the trial court for further proceedings consistent with this opinion. (GAYLES, J. CONCURS).
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1The insured passed away sometime thereafter.
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(RODRIGUEZ, Judge.) I respectfully DISSENT and would have affirmed the trial court’s ruling. “In appellate proceedings, the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla. 1979). Florida statute requires a provider to notify the claimant, upon the receipt of a demand letter, why the claim was being rejected. § 672.736 (4)(b), Fla. Stat. In this case, the failure of UAIC to notify the claimant and advise that the submitted charge was deficient due to the omission of an attached assignment letter was tantamount to a waiver. United Automobile Ins. Co. v. Perez, 18 Fla. L. Weekly Supp. 31a (11th Cir. 2010). Although the complaint alleged that a copy of the assignment from Julien was previously provided to UAIC, UAIC denied this in its answer and during the hearing on the motion for summary judgment. In support of their position, UAIC referred to the deposition of one its adjuster who refuted the receipt of the assignment letter. However, a copy of the deposition transcript is not a part of the record. Because the alleged failure by LPA to provide a copy of the assignment letter was an affirmative defense, UAIC had the obligation to produce the deposition transcript of its adjuster disputing the assignment letter’s receipt. Since UAIC did not, the apparent omission of the assignment letter should not be deemed a factual issue in dispute.
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