22 Fla. L. Weekly Supp. 360a
Online Reference: FLWSUPP 2203CARTInsurance — Personal injury protection — Standing — Assignment — Insurer waived right ro raise lack of standing as affirmative defense where defense was not raised in its answer and insurer has never set hearing onits motion for leave to add lack of standing as affirmative defense, which was filed one year earlier — Document directing that payment go directly to medical provider was sufficient to confer standing
KINGSLEY CHIROPRACTIC CLINIC A/A/O BLANCHE CARTER, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2012-SC-001825 (D). August 28, 2014. Richard Townsend, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. Matthew Corker, Conroy, Simberg, Ganon, et. al., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AS TO STANDING
THIS MATTER comes before this Court for hearing on August 25, 2014 on Plaintiff’s Motion for Partial Summary Judgment and Defendant’s Cross-Motion for Final Summary Judgment as to the issue of standing. This Court, having reviewed the Court file and having heard argument of counsel and being otherwise fully advised in the premises rules as follows:
The facts in this case are not in dispute. The issue before this Court is whether the Plaintiff has standing to bring a lawsuit for unpaid personal injury protection benefits based on its Assignment of Benefits. The Plaintiff says that said assignment is a transfer of rights and benefits, thereby conferring standing. The Defendant states that the document labeled “Assignment of Insurance Benefits” is “merely” a “direction to pay”. The Court has reviewed the document, which has been admitted into evidence through stipulation of the parties. The document is entitled “Assignment of Insurance Benefits”, which states, in pertinent part:
“I authorize and direct that payment be made directly to (address of the Plaintiff). For any and all insurance benefits or reimbursements for services rendered by them which amount would otherwise br (sp) payable to me under any insurance or prepaid healthcare plan.”
The document is then signed by the assignor and it states that the patient is responsible for all remaining charges. The document does not contain language referencing the conveyance of “rights” and, therein rests the gravamen of the Defendant’s claim that the document is not a valid assignment of benefits.
As a preliminary matter, the Plaintiff states that the Defendant waived the issue of lack of standing because the Defendant’s Answer failed to raise standing as an affirmative defense. In Florida, lack of standing is an affirmative defense that must be raised by the Defendant and the failure to raise it generally results in a waiver. Phadael v. Deutsche Bank Trust Company, 83 So.3d 893 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D341a]; Schuster v. Blue Cross and Blue Shield of Florida, Inc. 843 So.2d 909 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]. In this case, the Defendant filed its Answer in February 2013 and lack of standing was not raised as a defense. As of the date of this hearing, the Defendant still never set a hearing on its motion for leave to add lack of standing as an affirmative defense.1 Therefore, the Court rules that the defense is waived.
Even assuming the Defendant properly raised lack of standing as an affirmative defense, the Court finds that the Plaintiff in this case has standing. The Defendant provides this Court with no cases from any District Court of Appeal (or higher) supporting its proposition that there is a legal distinction between an assignment of benefits and a direction to pay. Conversely, the Plaintiff provides case law from almost every District Court of Appeal in Florida showing that once an assignor transfers a right to benefits under a contract of insurance, the effect of such an assignment is to place the insured’s cause of action for such benefits in the provider. See, Schuster v. Blue Cross and Blue Shield, 843 So.2d 909 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]; State Farm v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990); Hartford Insurance Company v. O’Connor, 855 So.2d 189 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2140a]; and, Progressive v. McGrath, 913 So.2d 1281 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b].
In Schuster v. Blue Cross, 843 So.2d 909 (Fla 4th DCA 2003) [28 Fla. L. Weekly D505a], the Fourth District Court of Appeal ruled that an assignment of benefits from the patient (Schuster) to medical providers that directed payment to go directly to the providers to whom the assignments were given conveyed standing to the providers for unpaid benefits. In citing the trial court judge, the Fourth District agreed that:
“Any interest on damages owed in this case would be owed to the health care providers and not the Schusters. Where the Schusters assigned their contract rights to the health care providers at issue in this case, they assigned away their right to bring this cause of action for breach of contract against Blue Cross and for any resulting damages. The Schuster were not the real parties in interest in this case.”
Schuster at 911.
Like in Schuster, the Plaintiff in our case had an assignment that included a direction to-pay and omitted any language about conveying an “additional right” to file a lawsuit in the event of a non-payment of benefits. The Fourth District found that the direction-to-pay was enough to convey standing to the provider — and only to the provider — to file such a suit. This Court follows the reasoning and holding in Schuster as to this issue.
In State Farm Fire and Casualty Company v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990), the patient/assignor signed an assignment of benefits that was entitled “Irrevocable Assignment of Benefits” and set for the transfer of any proceeds accruing to Ray (the patient) from State Farm directly to Halifax Hospital, which rendered treatment to Ray from injuries related to a motor vehicle accident. There is no language in Ray discussing the inclusion or need for additional language to include the additional “right to bring a law suit” in the event proper payments are not made. The Fifth District ruled:
“An assignee may enforce payments or the performance of an obligation due under an assigned contract. Because an unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee. 4 Fla.Jur.2d, Assignments § 23 (1978); see also Howard v. Pensacola & A.R. Company, 24 Fla. 560, 5 So. 356 (1886). Thus, since Ray’s letter apportioning the benefits under the policy cannot be construed as an assignment, State Farm was correct in honoring the hospital’s claim first, since Ray effectively assigned his interest in the policy to the hospital.”
State Farm v. Ray, at 813.
Like in Ray, the unqualified assignment transfers to the assignee all interest of the assignor under the contract, and only the assignee may enforce payments or performance of an obligation due under a contract. Here, that transfer inures to the benefit of the assignee.
The Plaintiff also submitted Orders from sister courts finding that the Plaintiff has standing to bring a law suit for unpaid PIP benefits when the patient signs an assignment of benefits that directs payment from the insurer directly to the provider without the additional verbiage of right to bring a cause of action. See, Advanced MRI Diagnostic a/a/o Anthony Mayo v. State Farm Mut. Auto. Ins. Co, 20 Fla. L. Weekly Supp. 599a (Order of Duval County Court Judge Emmet F. Ferguson, III, December 14, 2012); Advanced MRI Diagnostic a/a/o Benita Ciment v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 422a (Order of Duval County Court Judge Sharon H. Tanner, December 13, 2012. Finally, this Court previously ruled on this same issue with another document entitled “Assignment” in Moore Chiropractic Center a/a/o Belinda Davis v. USAA Casualty Insurance Company, 20 Fla. L. Weekly Supp. 797a (Order of Clay County Court Judge Richard Townsend dated May 14, 2013). The pertinent language in the assignment in Moore is also present in this case and the rationale of finding standing is present in both cases. Therefore, this Court remains consistent in finding a proper conveyance and is not moved to change its position.
THEREFORE, the Plaintiff’s Motion for Partial Summary Judgment is GRANTED and the Defendant’s Motion for Final Summary Judgment is DENIED.
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1The Defendant filed a Motion for Leave to Amend its Answer to add the affirmative defense of lack of standing, however, after over one year of not setting its own motion, Defendant chose instead to file its cross-motion for summary judgment as to standing and proceed on same instead.
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