22 Fla. L. Weekly Supp. 976a

Online Reference: FLWSUPP 2209RANDInsurance — Personal injury protection — Standing — Assignment — Document that directs payment from insurer directly to medical provider is valid assignment conferring standing on provider to sue insurer for unpaid benefits

ACCMED HEALTHCARE SYSTEM, LLC, d/b/a FLORIDA SPINE CARE (a/a/o ALPHONSO RANDALL), Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2013-AP-00067-XXXX-MA, Division CV-D. L.T. Case No. 16-2012-SC-02438, Division Q. April 14, 2015. Appeal from the County Court Duval County, The Honorable Dawn Hudson, County Court Judge. Counsel: Vincent P. Gallagher, Neptune Beach, for Appellant. Douglas H. Stein, BeachLifeLaw, Miami; Angela Roush and Christopher Cavaliere, Tampa, for Appellee.

OPINION

(NORTON, Judge.) Appellant, Accmed Healthcare System, LLC (“Accmed”), as assignee of Alphonso Randall (“Mr. Randall”), brought an action in the county court to recover personal injury protection (“PIP”) benefits for treatment rendered to Mr. Randall, an insured of United Services Automobile Association (“USAA”). Accmed filed a timely appeal of the trial court’s Order Granting Final Summary Judgment in Favor of Defendant, United Services Automobile Association and Order on Defendant’s Motion for Attorney’s Fees and Costs. This Court has jurisdiction pursuant to section 26.012(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(1)(A).

BACKGROUND

Mr. Randall was involved in a car accident on or about May 19, 2011, in which he sustained personal injuries. Upon his visit to Accmed, Mr. Randall filled out and signed a patient registration form that included sections entitled “Power of Attorney and Medical Release” and “Assignment of Benefits.” The power of attorney provides in part:

Power of attorney to endorse checks and/or to sign any piece of paper, which will enhance or expedite payment to the provider for services rendered, including but not limited to a release of medical records and assignment of benefits/authorization to pay. . . . Furthermore, the undersigned allows Florida Spine Care or any of its agents to sign any paper that will be necessary to enhance, expedite and/or allow payment to said provider.

The assignment of benefits provides:

I Alphonso Randall hereby authorize USAA Auto Insurance the assignment of benefits payable to Florida Spine Care and/or its designee for physician services and supplies by government and/or any other private third party payer. I understand that I will be held responsible for payment of all co-payments, co-insurance, deductibles, non-covered services and services deemed not medically necessary by the agents given above. In the event I receive payment from my insurance carrier I agree to endorse any payment I have over to my physician for which these fees are payable.

Accmed treated Mr. Randall on February 7, 2012, and billed USAA for $800.00. Accmed refused payment. On March 7, 2012, Accmed sent USAA a pre-suit demand letter pursuant to section 627.736, Florida Statutes. USAA refused payment again. As a result, Accmed sued USAA for breach of contract and a violation of section 627.736. In its answer, USAA asserted as an affirmative defense Accmed’s lack of standing based on an invalid assignment of benefits attached to the complaint.

Subsequently, USAA moved for final summary judgment arguing, among other things, that the assignment of benefits attached to the pre-suit demand letter and complaint was not an assignment of Mr. Randall’s rights under the policy, but merely a direction to pay Accmed directly for services rendered. USAA maintained that Mr. Randall did not confer upon Accmed the standing to sue for breach of his insurance policy. After a hearing, the trial court granted USAA’s motion for final summary judgment. The trial court also granted USAA’s motion for attorney’s fees and costs, pursuant to sections 768.79 and 57.105, Florida Statutes. Accmed timely filed notices of appeal from the final summary judgment and the order awarding attorney’s fees and costs. The appeals were consolidated on December 17, 2013. This Court heard oral argument on January 9, 2015.

STANDARDS OF REVIEW

The issues in this case are whether the trial court erred in granting USAA’s motion for final summary judgment and USAA’s motion for attorney’s fees and costs. The standard of review for summary judgment is de novo. Krol v. City of Orlando, 778 So. 2d 490, 491 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]. A final summary judgment should be affirmed when the record reflects that no genuine issues of material fact exist, and the movant is entitled to judgment as a matter of law. Id. The standard of review of a trial court’s order awarding attorney’s fees pursuant to section 57.105(1) is abuse of discretion. Lago v. Kame By Design, LLC, 120 So. 3d 73, 74 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1688b]. The standard of review for an order awarding attorney’s fees under section 768.79 is de novo. Nilo v. Fugate, 30 So. 3d 623, 625 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D592e] (citing Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007) [32 Fla. L. Weekly S320a]).

DISCUSSION

While Accmed makes many arguments on appeal, the dispositive issue is whether the trial court correctly determined that the assignment of PIP benefits did not convey the right to sue. This Court is not aware of, and USAA has not pointed to, any Florida District Court of Appeal decisions that support USAA’s assertion that an assignment of benefits must explicitly assign “any and all rights and liabilities under [the] insurance contract” to grant a provider with standing to sue an insurance company for payment. Instead, USAA relies on county court decisions from other circuits that are similar to the trial court’s order in this case. See, e.g., V.R. Massage & Therapy Ctr. V. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 1117a (Fla. Hillsborough Cty. Ct. 2010).

This Court, however, finds persuasive the decisions of four county court judges in the Fourth Judicial Circuit who denied similar motions for summary judgment in cases involving comparable assignments that do not expressly assign to the provider all rights and benefits under the insurance policy. See First Coast Imaging v. State Farm Fire & Casualty Co., 22 Fla. L. Weekly Supp. 709a (Fla. Duval Cty. Ct. 2014); Kinglsey Chiropractic Clinic v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 360a (Fla. Duval Cty. Ct. 2014); Advanced MRI Diagnostic v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 599a (Fla. Duval Cty. Ct. 2012); Advanced MRI Diagnostic v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 422a (Fla. Duval Cty. Ct. 2012). These judges concluded, and this Court agrees, that an unqualified instruction to pay the provider directly is a common law assignment or the statutory assignment contemplated by section 627.736 and that such an assignment is sufficient to convey the provider standing to sue for unpaid benefits.¹

In reaching their decision, the Duval County court judges rely on several District Court of Appeal decisions, which “provide excellent guidance on the lack of distinction between a direction to pay and an assignment.” Advanced MRI Diagnostic v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 599a (Fla. Duval Cty. Ct. 2012). For example, in State Farm Fire and Cas. Co. v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990), Ray executed an assignment of insurance benefits to Halifax Medical Center (“the hospital”). Id. at 812. Sometime thereafter, Ray also instructed his insurance company “to pay no more than 20% of the PIP benefits for medical expense.” Id. After the insurance company made payments to the hospital for services provided and paid Ray a portion of his claim for lost wages, Ray’s coverage had been exhausted. Id. Ray brought suit seeking the unpaid balance of his lost wages, claiming the insurance company received his instructions directing the apportionment of the proceeds before learning of the hospital’s assignment and should have honored the former first. Id. The trial court treated Ray’s instructions to allocate the benefits as an assignment and ruled in favor of Ray. Id.

On appeal, the Fifth District determined that Ray’s letter to the insurance company directing it not to pay more than 20% of the policy’s benefits for medical expenses was not an assignment “for the simple reason that Ray did not transfer his interest in the policy to another party. To the contrary, he merely reapportioned his own benefits.” Id. at 812-813. The court noted that, in contrast to the letter, “the arrangement between Ray and the hospital possesses all the classic features of an assignment. Not only is the document entitled ‘Irrevocable Assignment of Benefits,’ it sets forth the transfer of any proceeds accruing to Ray from State Farm under the policy stemming from Ray’s accident and subsequent hospitalization.” Id. at 813.

While the court in Ray was not tasked with determining whether the assignment between the hospital and Ray was valid, its emphasis on the “transfer of any proceeds” from Ray to the hospital, as opposed to a requirement that there be a transfer of a right to sue, is instructive. See also Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] (“For a medical provider to bring an action for PIP benefits, the insured must assign his or her right to such benefits under the policy to the medical provider.”); Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So. 2d 1210, 1212 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a] (“Courts have recognized that medical service providers can assert claims for PIP benefits against insurers when an insured has assigned them the right to the benefits.”).

This Court also agrees with Judges Ferguson and Tanner that courts have an interest in seeing that issues are properly litigated. “Furthermore, the claim should be brought by, or on behalf of, the real party in interest.” Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D680a] (“Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation.”). Here, there is no dispute that services were rendered and billed by Accmed, who is now seeking to enforce its right to payment under the assignment. This Court is under the impression that the insured has not filed a lawsuit to get the bill at issue paid and he did not object to the filing of this suit by Accmed. Accmed appears to be the party in the best position to prosecute the claim. See generally Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997) (“[I]f provider-assignees can sue [the ERISA plan] for payment of benefits, an assignment will transfer the burden of bringing suit from plan participants and beneficiaries to providers[, who] are better situated and financed to pursue an action for benefits owed for their services.”) (internal citation and quotations omitted); Gables Ins. Recovery v. United Healthcare Ins. Co., No. 13-21157-CIV, 2013 WL 9576688 (S.D. Fla. Aug. 8, 2013) (“A health care provider may acquire derivative standing to sue under ERISA by obtaining a written assignment from a participant or beneficiary of its right to payment of medical benefits.”).CONCLUSION

In light of the above, the Court finds that Accmed has standing to bring an action against USAA for nonpayment of benefits under the insurance policy.

Accordingly, it is ORDERED AND ADJUDGED that the trial court’s Order Granting Final Summary Judgment in Favor of Defendant United Services Automobile Association and Order on Defendant’s Motion for Attorney’s Fees and Costs are REVERSED and the action is REMANDED for further proceedings consistent with this opinion.

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¹County courts in other circuits analyzing this issue have reached the same conclusion. See e.g., Center for Diagnostic Imaging v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 352b (Fla. Miami-Dade Cty. Ct. 2013) (finding Florida law does not require language specifically granting provider “right to bring a lawsuit” to convey standing); Orlando Orthopedic Center v. State Farm Mutual Auto. Ins. Co., 22 Fla. L. Weekly Supp. 730a (Fla. Orange Cty. Ct. 2014); Professional Diagnostic Reading v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 700a (Fla. Broward Cty. Ct. 2013).

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