22 Fla. L. Weekly Supp. 686a

Online Reference: FLWSUPP 2206ARODInsurance — Personal injury protection — Coverage — Medical expenses — Emergency services — Deductible — No error in finding that, where both emergency service providers and other medical providers seek PIP benefits, deductible must be applied to benefits paid to other providers rather than those paid to emergency service providers — Standing — Assignment from insured to emergency provider was valid so as to confer standing to bring suit on the policy — Lack of language providing that assignment is irrevocable is not dispositive on issue of standing

USAA GENERAL INDEMNITY COMPANY, Appellant, vs. EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, a/a/o Adriel Rodriguez, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 13-17-AP. L.T. Case No. 12-SC-0705. February 17, 2015. Appeal from the County Court for Seminole County. Honorable Jerri L. Collins, County Court Judge. Counsel: Douglas H. Stein and Stephanie Martinez, for Appellant. Dean A. Mitchell, for Appellee.

[Editor’s note: County court order published at 20 Fla. L. Weekly Supp. 697a.]ON REHEARING[Original Opinion at 22 Fla. L. Weekly Supp. 341a]

(RECKSIEDLER, Judge.) Appellant has moved for rehearing pursuant to Florida Rule of Appellate Procedure 9.330(a). Upon due consideration of the motion and Appellee’s response, this Court grants the motion, withdraws its previous opinion, and substitutes the following opinion in its stead.

BACKGROUND

In this case, the policyholder/insured was involved in an accident. Appellant, USAA General Indemnity Company (USAA), first received a bill from the Appellee, Emergency Physicians of Central Florida (EPCF), for $446 and later received a bill from a chiropractic provider in the amount of $2,860. Since the policyholder’s insurance policy included a $500 deductible, USAA first applied the deductible to EPCF’s bill, meaning that EPCF was not reimbursed from the policy at all, and the remaining $54 was applied to reduce the chiropractor’s reimbursement.

At trial, EPCF alleged that the insured had executed an assignment of benefits under the insurance policy and that USAA had misapplied the deductible to its claim. The language in the assignment relied upon by EPCF reads as follows:

1. ASSIGNMENT OF INSURANCE BENEFITS

A. In the event I am entitled to benefits or other recovery of any type whatsoever arising out of any policy of insurance insuring the patient or any other party liable to the patient (including but not limited to private and group health and hospitalization benefits, automobile liability, general liability, personal injury protection, medical payments and uninsured or underinsured motor vehicle benefits) such benefits or recovery are hereby assigned to Orlando Health, Inc. for application to the patient’s bill and I authorize direct payment to Orlando Health, Inc. of such benefits or recovery. It is agreed that Orlando Health, Inc. may receipt [sic] for any such payment. I am responsible for charges not cover by this assignment.

B. I hereby assign the insurance benefits otherwise payable to the undersigned and/or patient to any involved provider(s), including but not limited to radiologists, cardiologists, pathologists, anesthesiologists, emergency department physicians, and Omnilight Helicopters, Inc., and I authorize direct payment to said providers of such benefits. I am responsible for charges not covered by this assignment.

USAA filed two Motions for Final Summary Judgment — one based on proper application of the deductible, and one challenging EPCF’s standing to pursue the action under the alleged assignment. EPCF filed its own Motion for Final Summary Judgment based on the deductible issue, and responded to USAA’s motion regarding standing. After a hearing on the issue of standing, the trial court denied USAA’s motion, finding “the document upon which the Plaintiff relies for standing . . . to be a valid, legally enforceable assignment in favor of the Plaintiff.”

A subsequent hearing was held on the issue of the deductible. The trial court found that the system was created to ensure that medical providers were fully reimbursed, and therefore the entire $500 deductible should have been applied against the non-priority provider’s claim, where both priority and non-priority providers seek payment of PIP benefits. Summary judgment was granted in favor of EPCF, and USAA’s competing motion for summary judgment was denied.

DISCUSSION

Standing

On appeal, USAA again argues that EPCF lacks the requisite standing to bring suit against it to enforce the insurance policy.¹

The standard of review for a final order granting a motion for summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. “Where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only,” and, on appeal, the court “is not

restricted in its ability to reassess the meaning and effect . . . to reach a conclusion contrary to that of the trial court.” Hinely v. Fla. Motorcycle Training, Inc., 70 So. 3d 620, 623 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D1031b].

The Fifth District Court has defined an assignment as “a transfer or setting over of property or of some right or interest therein, from one person to another. It is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein.” State Farm Fire & Cas. Co. v. Ray, 556 So. 2d 811, 812 (Fla. 5th DCA 1990) (internal quotations and citations omitted). The Fourth District Court succinctly stated that “[u]nder Florida law, an insured may assign his right to benefits under a contract of insurance . . . the effect of which is to place the insured’s cause of action for such benefits in the provider.” Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So. 2d 909, 911-12 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]. Similarly, the Fifth District noted, under Ray, that “[a]n assignee may enforce payments or the performance of an obligation due under an assigned contract.” Id. at 813. In Ray, the Court stated that “[b]ecause 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.” Id. at 813.² “At any one time, only the insured or the medical provider ‘owns’ the cause of action against the insurer for PIP benefits.” Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a].

USAA cites to Ray, supra, for the proposition that if an unqualified and irrevocable assignment transfers all rights and interests to the assignor, then the converse must be true — namely, a qualified and revocable assignment does not transfer such rights. This proposition does not necessarily follow. The cited case law does not preclude a qualified assignment from validly transferring rights or interests to the assignee, contingent upon the qualifying language. Additionally, an assignment that is revocable does not make that assignment invalid, absent an actual revocation. In the current case, USAA is correct that there is no language making the purported assignment irrevocable, however there is also no indication that the assignment actually was revoked by the insured. This Court does not find the lack of irrevocability language to be dispositive on the issue of standing.

Furthermore, this Court is not convinced that anything in the language of the contract acts as a qualification of the assignment so as to preclude EPCF from bringing suit on the insurance policy. While acknowledging that paragraph “A” of the purported assignment assigns both benefits and other rights to Orlando Health, Inc., USAA argues that paragraph B, involving the assignment to emergency providers such as EPCF, merely assigns the right to receive payment and is nothing more than a direction to pay. USAA essentially argues that, although EPCF has been assigned the right to receive benefits under the policy, EPCF does not have the right to enforce any claim to those benefits. This contention is inapposite, especially in light of USAA’s own case law which states that an assignee may “enforce payments or the performance of an obligation due under an assigned contract.” Ray, 556 So. 2d at 813.³

As such, this Court finds the assignment from the insured to EPCF to be valid so as to confer standing to bring suit on the policy.

Deductible

The second issue on appeal addresses the interplay and interpretation of Fla. Stat. §627.736(4)(c), providing for a prioritization of certain PIP benefits, and Fla. Stat. §627.739(2), addressing the application of a deductible in PIP cases.

“Issues of statutory interpretation are reviewed under a de novo standard.” Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006) [31 Fla. L. Weekly S375a]. The parties dispute whether the trial court properly relied upon tenets of statutory construction in construing the statutes.

Fla. Stat. §637.736(4)(c) was written to ensure that certain medical providers, including physicians, dentists, and emergency providers (“priority providers”), receive full payment for their services after an automobile accident. To accomplish this objective, the Legislature mandated that $5,000 of the $10,000 PIP benefits be set aside for payment only to those priority providers. Now, for 30 days following an automobile accident, only those priority providers’ bills may be paid from that pool, while bills from other providers, such as chiropractors, massage therapists, or acupuncturists (“non-priority providers”), are paid from the other pool, up to a maximum of the remaining $5,000. Unlike the non-priority providers, the priority providers are not initially subjected to a $5,000 cap, as they may receive reimbursement up to the policy limits within that 30 day period. However, if after 30 days the priority providers have not claimed the entire $5,000 that had been set aside, the non-priority providers may be reimbursed from the previously reserved funds.⁴

This case involved the application of the deductible to these policy claims. The trial court correctly understood that the Legislature created this two-tiered system to ensure that certain medical providers are fully reimbursed. There is no language in the statutes that exempts the priority claimants from any deductible that may be due and owing, nor is there any statutory language that specifically requires the insurance company to apply the deductible in any manner.

This puts the priority providers in a catch-22 when submitting their claims. On one hand, in order to obtain full reimbursement, they must submit their claims within 30 days. However, doing so means that the deductible will be applied against their bills. If they wait to submit their bills to avoid having the deductible applied to them, they run a risk that they will not be fully reimbursed.⁵ In cases without substantial priority medical bills, savvy non-priority providers will wait to submit their bills on the 31st day after an accident to ensure that the deductible will not be applied against their claims. This contravenes the intent of this statutory scheme.

Since there is no language dictating the method by which an insurance company should apply the deductible, the trial court was entitled to enforce the legislative intent of the statutory scheme. Accordingly, summary judgment was properly granted in favor of the Appellee.

AFFIRMED.

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¹EPCF has argued that that USAA has waived the issue of standing and, alternately, cannot properly raise the issue as it is not a party to nor in privity with any party to the assignment. This Court finds these arguments to be without merit.

²In Ray, the court found that a document entitled “Irrevocable Assignment of Benefits,” setting forth the transfer of any proceeds accruing to the insured under the insurance policy to the hospital/medical provider in question, was a valid assignment conferring to the hospital the right to make a claim. Ray, 556 So. 2d at 813. As such, the insured no longer held any rights to any claims against the insurer under the policy and could not subsequently re-assign those rights. Id.

³Although ultimately holding in EPCF’s favor, the Court notes that EPCF’s reliance on Gary H. Weiss, D.C. v. Progressive Am. Ins. Co., 15 Fla. L. Weekly Supp. 141a (Fla. 18th Cir. App., November 14, 2007) and Mobile Diagnostics a/a/o Susan Shepard v. Geico Indem., 13 Fla. L. Weekly Supp. 797a (Fla. 18th Cir. App., May 2006) as direct authority on the issue in this case is misplaced. Those cases involved a determination of whether the named party was the proper party in interest, not whether certain rights or benefits had in fact been assigned, as in the case at hand.

⁴In other words, if a policyholder accrues $3,000 in medical bills and $7,000 in non-priority bills, the doctors are paid $3,000 and the non-priority providers are paid $5,000 within 30 days after the accident. On the 31st day after the accident, the remaining $2,000 of set aside benefits would be made available to the non-priority providers. In another scenario, if the policyholder accrues $5,000 in medical and $7,000 non-priority bills, the medical providers are guaranteed $5,000, so long as the claims are submitted within 30 days of the accident, and the non-priority providers are not fully reimbursed. In this situation, it does not matter whether the non-priority providers’ claims were submitted first.

⁵The trial court recognized that an insured may incur bills only from priority providers. In such a case, the court recognized that the deductible would be properly applied against the priority medical providers’ claims.

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