22 Fla. L. Weekly Supp. 379a

Online Reference: FLWSUPP 2203VALDInsurance — Personal injury protection — Standing — Assignment — Where plaintiff received assignment of PIP benefits from medical provider who had received assignment from insured, and plaintiff has not revoked assignment or reassigned benefits to provider, plaintiff has standing to bring action against insurer — Where insurer paid PIP benefits to provider after receiving notice of assignment to plaintiff, insurer can be held liable to plaintiff for benefits in excess of policy limits — Testimony of litigation adjuster and insurer’s payment of benefits indicate that treatment was medically necessary

GABLES INSURANCE RECOVERY, INC., a/a/o KRISTINE VALDES, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. v. ALL XRAY DIAGNOSTIC SERVICES, CORP., Third Party Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division. Case No. 2012-18756 SP 25. September 12, 2014. Don S. Cohn, Judge. Counsel: Monica Holden and Robert Pelier, for Plaintiff. Neil V. Singh and Patrick Gerace, Fort Lauderdale, for Defendant. Matthew Ladd, for Third Party Defendant.

Appeal pending. (Progressive American Ins. Co. v. Gables Ins. Recovery, Inc., 11th Circuit, Case No. 15-190 AP)

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON STANDING AND NECESSITY OF THE MEDICAL SERVICES

THIS CAUSE having come before the Court on August 18, 2014, on Plaintiff’s Motion for Summary Judgment on Standing and Necessity of the Medical Services Rendered, and the Court having reviewed said motions, the record, and applicable law, as well as heard argument of counsel and otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED (for the reasons set forth herein):FACTS

The undisputed evidence shows that this matter involves a suit for personal injury protection (“PIP”) benefits under a policy of insurance issued by Progressive American Insurance Company (“Progressive”). On January 1, 2010, Ms. Valdes was involved in an automobile accident. She subsequently sought treatment at Sule Florida Medical Center for injuries allegedly sustained in the accident. Ms. Valdes appeared on January 5, 2010, at All X-Ray Diagnostic Services, Corp. (“All X-Ray” or “Provider”) after being prescribed diagnostic studies. In conjunction with having said studies conducted, Ms. Valdes executed an Assignment of Benefits assigning all rights to PIP benefits to All X-Ray under the insurance policy. All X-Ray subsequently assigned all of its rights originating from the insured to Gables Insurance Recovery, Inc., (“Gables”) on March 24, 2010. On or about April 13, 2010, Gables submitted a Notice of Intent to Initiate Litigation (“Pre-Suit Demand Letter”) to Progressive along with the initial assignment from Ms. Valdes to All X-Ray and the subsequent assignment from All X-Ray to Gables. Progressive responded to Gables’ pre-suit demand letter on May 17, 2010. Over one year later on August 23, 2011, Progressive received a pre-suit demand letter from the Law Offices of Gonzalez and Associates, LLC, (“Gonzalez”) who purportedly represented the provider regarding the same charges at issue in this case. On September 22, 2011, Progressive responded to the pre-suit demand letter submitted by Brana and issued payment to the provider in the amount of $45.01 for overdue benefits, $4.50 for penalty, $4.37 for interest, and $1.09 for postage. To date, Gables has not revoked or rescinded the assignment, nor has it reassigned said benefits to All X-Ray.

STANDARD OF REVIEW

Rule 1.510(c) of the Florida Rules of Civil Procedure, a moving party is entitled to summary judgment if the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” On a motion for summary judgment, the moving party bears the burden of proving the non-existence of any genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); Harvey Bldg., Inc. v. Haley, 175 So. 2d 780 (Fla. 1965); Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla. 1956). If the moving party meets its burden, then the burden shifts to the non-moving party to provide evidence sufficient to reveal a genuine and material disputed issue of fact. See id. at 43-44. It is not enough for the non-moving party opposing summary judgment merely to assert that an issue exists. Harvey Bldg., Inc., 175 So. 2d at 783.ANALYSISA. Standing

In order to determine whether Progressive can be held liable for No-Fault benefits, the Court must first analyze whether GIR has standing to bring forth the instant case and whether GIR timely notified Progressive of its assignment. The Court may then determine whether the policy at hand was properly exhausted.

The law on assignments is well settled in Florida — “an assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned.” Prescription Partners, LLC v. State Dep’t of Fin. Serv., No. 1D12-3305 (1st DCA Mar. 28, 2013) [38 Fla. L. Weekly D715a] (citing Dep’t of Revenue v. Bank of Am., N.A., 752 So. 2d 637, 642 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D118a] (quoting State v. Family Bank of Hallandale, 667 So. 2d 257, 259 (Fla. 1st DCA 1995)) [20 Fla. L. Weekly D1992a]). See also United Auto. Ins. Co. v. Otero, 39 So. 3d 563, 564 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1091a]; LLP Mortg., Ltd. v. Cravero, 851 So. 2d 897, 898 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1889a]; Schuster v. Blue Cross & Blue Shield of Fla., 843 So. 2d 909, 912 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]; and Livingston v. State Farm Mut. Auto. Ins. Co., 774 So. 2d 716, 718 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D533c]. Unless an express prohibition exists in a statute, a party may assign any of its rights in common law or via statute, including those arising under contracts, to another party. Id. at 1222 (quoting VOSR Indus. v. Martin Props., Inc., 919 So. 2d 554, 556 (Fla. 4th DCA 2005) [31 Fla. L. Weekly D71a]). See also Gables Ins. Recovery, Inc., a/a/o Maria Carmen Ovalle v. Seminole Cas. Ins. Co., 10 So. 3d 1106, 1108 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b]; Livingston v. State Farm Mut. Auto. Ins. Co., 774 So. 2d 716, 718 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D533c]; Schuster v. Blue Cross & Blue Shield of Fla., 843 So. 2d 909, 912 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]. Specifically, Florida’s No-Fault Law does not prohibit the assignment of PIP benefits. See id. See also Gables Ins. Recovery, Inc., a/a/o Maritza Piure v. Seminole Cas. Ins. Co., No. 06-010175 SP 25, slip op. (11th Jud. Cir. Ct. Apr. 26, 2007).

In the instant case, the claimant, Ms. Valdes, sought diagnostic studies at All X-Ray’s facility on January 5, 2010. Prior to conducting the studies, All X-Ray obtained an assignment from Ms. Vales vesting it with all of the rights for PIP benefits under the policy. On March 24, 2010, All X-Ray assigned these benefits to GIR authorizing Progressive, Ms. Valdes’ insurer, to pay any amounts due and owing to Gables. As a result of the assignment, Gables became the true party in interest and, thus, had standing to pursue the instant case. See Gables Ins. Recovery, Inc., a/a/o Maria Carmen Ovalle v. Seminole Cas. Ins. Co., 10 So. 3d 1106 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b]; See also Gables Ins. Recovery, Inc., a/a/o Maritza Piure v. Seminole Cas. Ins. Co., No. 06-010175 SP 25, slip op. (11th Jud. Cir. Ct. Apr. 26, 2007); and Schuster v. Blue Cross & Blue Shield of Fla., 843 So. 2d 909, 911 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a].

The next line of inquiry to determine whether Progressive can be held liable for No-Fault benefits in excess of policy limits centers on the issue of notice. “The effect of . . . an assignment is to place the insured’s cause of action for such benefits in the [assignee].” Schuster v. Blue Cross & Blue Shield of Fla., 843 So. 2d 909, 911-912 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a].

Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his or her attention if the organization had exercised due diligence.

Bldg.Materials Corp. of Am. v. Presidential Fin. Corp., 972 So. 2d 1090, 1093 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D351a]. See also Geico Gen. Ins. Co. v. Tarpon Total Health Care, 86 So. 3d 585 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1027a]. It is well-settled under Florida law that a debtor who receives notice of an assignment “may be held liable to the assignee if the debtor later pays the assigned debt to the assignor rather than the assignee.” Id. at 1092-93. Once notice is received, a debtor may only discharge its obligation by paying any due and owing amounts to the assignee. Id. Furthermore, even in the case where there are multiple assignments for the same accounts receivable, Florida law recognizes the English rule — “the assignee who first gives notice of his claim to the debtor is preferred and has the prior right.” Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 174 So. 2d 559, 560 (Fla. 3d DCA 1965).

On or about April 13, 2010, after receiving the assignment of PIP benefits under Ms. Valdes’ policy from All X-Ray, Gables submitted a pre-suit demand letter to Progressive which included a copy of the Assignment of Benefits from the patient/claimant to All X-Ray and a copy of the Assignment of Benefits from All X-Ray to Gables. Progressive responded to Gables’ pre-suit demand letter on or about May 17, 2010. Progressive’s response is an acknowledgement of receipt regarding the documents submitted by Gables; namely, the pre-suit demand letter and the respective assignments. During her deposition, Progressive’s litigation adjuster, Lisa Campbell, who became involved in this case on September 20, 2012, acknowledged receipt of Gables’ pre-suit demand letter. Further, there is no evidence that Progressive received any rescission or revocation of the assignment to Gables, nor had it received any reassignment from Gables back to the medical provider. In addition, Progressive’s litigation adjuster also testified in her deposition that Progressive received a second pre-suit demand letter on July 14, 2010, which included a copy of the Assignment of Benefits from the patient/claimant to All X-Ray and a copy of the Assignment of Benefits from All X-Ray to Gables, from Gables involving the same insured and the same medical provider for a different date of service, which Progressive’s August 9, 2010 response acknowledged receipt of same.B. Necessity of the Medical Services Rendered

In this case, Progressive’s own litigation adjuster acknowledged and admitted in her deposition testimony that the medical services rendered by All X-Ray were medically necessary as result of the January 1, 2010 accident. Additionally, the material facts reveal that Progressive has made two payments in this case: one directly to All X-Ray as per the fee schedule and a second payment to Gonzalez, necessarily indicating that the medical services at issue were medically necessary.CONCLUSION

Accordingly, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment on the issue of Standing and Necessity of Medical Services is GRANTED for the reasons set forth herein.

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