22 Fla. L. Weekly Supp. 736a
Online Reference: FLWSUPP 2206JHERInsurance — Personal injury protection — Standing — Assignment — Where complaint alleges that insured assigned her rights, title and interest under policy and attached document assigns insured’s “PIP automobile insurance policy benefits,” motion to dismiss for lack of standing is denied
INTEGRATED HEALTH SOLUTIONS, P.L., D/B/A ADVANCED SPINAL CARE CHIROPRACTIC & REHAB OF LAKELAND, as assignee of Josefina Hernandez, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 2014 SC-001185. September 15, 2014. Susan B. Flood, Judge. Counsel: Brian Hogan and Vanessa Cotto, Hogan Frick P.A., Orlando, for Plaintiff. Daniel Shapiro, Tampa, for Defendant.
ORDER DENYING MOTION TO DISMISS
The above referenced matter came before this court on August 18, 2014 for hearing upon the Defendants’ Motion to Dismiss. Present before the Court were Vanessa Cotto, Esquire for the Plaintiff and Daniel Shapiro, Esquire for the Defendant. After argument of counsel, review of case law submitted by the Parties and the court being fully advised, the following findings of fact are made:
1. This suit arises from a claim for personal injury protection benefits brought by Plaintiff, as assignee for Josefina Hernandez.
2. Josefina Hernandez sought and received treatment from Plaintiff as a result of an automobile accident.
3. Josefina Hernandez executed a document entitled “Authorization to Release Auto Insurance Information and/or Obtain PIP Benefit Payout Information”, which reads in part:
I hereby grant my authorization for Advanced Spinal Care of Lakeland to request and obtain my PIP insurance policy benefits for the accident noted above.
4. Josefina Hernandez also executed a second document entitled “Assignment of PIP Benefits”, which reads in part:
I hereby assign my PIP automobile insurance policy benefits relating to the above captioned accident to Advance Spinal Care of Lakeland for professional services rendered and covered under my PIP and/or Medical payments policy. All payments for such services shall be forwarded directly to Advanced Spinal Care of Lakeland. All payments will be overdue if not paid within the allowed 30-day period after the insurer is furnished with properly completed claim form and medical records. Overdue payments will bear 10% interest per annum. In the event the insurer fails to pay Advanced Spinal Care of Lakeland the full amount of the treatment allowed by current fee schedule, I authorize and direct the insurer to set aside/escrow an amount equal to the full amount of any such reduction until Advanced Spinal Care has exercised its rights under this assignment and the dispute is resolved.
5. Defendant contends that the “Assignment of PIP Benefits” attached to the Plaintiff’s Complaint failed to confer standing on the Plaintiff to file this suit, because the Assignment does not assign “all rights” under the insurance policy, only the right to collect whatever payments are made.
6. Plaintiff contends that the document executed by Josefina Hernandez is not merely a direction to pay, and does constitute an assignment of all rights and benefits under the insurance policy to Plaintiff sufficient to confer standing to bring this suit.
7. Plaintiff’s Complaint alleges “Josefina Hernandez executed an actual or de-facto assignment of benefits assigning her rights, title and interest under the Policy” to Plaintiff. In fact, as noted in paragraph four above, the document executed by Josefina Hernandez and attached to the Complaint reads, “I hereby assign my PIP automobile insurance policy benefits. . .”.
8. A Motion to Dismiss is a question of law which tests the legal sufficiency of the Plaintiff’s Complaint. It is well settled that all reasonable inferences in the Complaint are to be accepted as true. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 23 (Fla. 2d DCA 1994) [20 Fla. L. Weekly D85c]. Furthermore, a Motion to Dismiss is not a substitute for a Motion for Summary Judgment. It is not for the court to speculate on whether the Plaintiff has the ability to prove the allegations in the complaint. The question for the court at this stage is whether, assuming all of the allegations in the Complaint, the Plaintiff would be entitled to the relief requested.
It is therefore ORDERED AND ADJUDGED:
Defendant’s Motion to Dismiss Plaintiff’s Complaint is DENIED.
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