23 Fla. L. Weekly Supp. 980a

Online Reference: FLWSUPP 2309ROMEInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Insurer improperly processed medical bills out of order by applying deductible to bill from emergency service provider, which was third bill received, instead of applying deductible to first bill received — Standing — Assignment — Document that assigns insured’s PIP benefits to “facility” and “provider” confers standing on emergency room physicians as providers

EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Sheena Romero, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-000043-O. February 3, 2016. Steve Jewett, Judge. Counsel: Mark A. Cederberg, Bradford Cederberg, Orlando, for Plaintiff. John E. Eckard, II, Orlando, for Defendant.

ORDER ON DEFENDANT’S MOTIONFOR RECONSIDERATION

[Original Opinion at 23 Fla. L. Weekly Supp. 757a]

THIS MATTER having come before this Honorable Court on January 22, 2016 on Defendant’s Motion for Reconsideration dated October 30, 2015 and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that: Defendant’s Motion for Reconsideration is GRANTED IN PART and DENIED IN PART. In light of the Mercury Insurance Company of Florida v. Emergency Physicians of Central Florida, et. al, 40 Fla. L. Weekly D2364a (Fla. 5th DCA 2015)¹ decision that came out after this Court’s Order granting summary judgment for Plaintiff on the issue of application of ER bill to the deductible and the issue of standing and denying Defendant’s summary judgment on standing, the Court hereby withdraws its prior Order entered on October 7, 2015 and substitutes this Order in its place.FACTS

1. On August 24, 2013, Sheena Romero (“Romero”) was injured in an automobile accident and received emergency services and care from Plaintiff, Emergency Medical Associates of Tampa Bay, LLC (“EMATB”).

2. At the time of the accident, Romero was insured under a policy of insurance with Defendant, USAA General Indemnity Company (“USAA”) and carried personal injury protection benefits coverage (“PIP”) with a $250.00 deductible.

3. EMATB obtained an assignment of benefits from Romero when EMATB rendered the emergency services and care to Romero on August 24, 2013.

4. The first medical bill that USAA received for payment under Romero’s PIP coverage for the subject automobile accident was from St. Joseph’s Hospital in the amount of $4,634.78. This bill was received by USAA on September 7, 2013.

5. The second medical bill that USAA received for payment under Romero’s PIP coverage for the subject automobile accident was from Bay Area Injury Rehab Specialists in the amount of $826.00. This bill was received by USAA on September 9, 2013.

6. The third medical bill that USAA received for payment under Romero’s PIP coverage for the subject automobile accident was from EMATB in the amount of $630.00. This bill was received by USAA on September 13, 2013.

7. There is no dispute that: a) St. Joseph’s Hospital (first bill received) and Bay Area Injury Rehab Specialists (second bill received) do not qualify as “protected” providers under Fla. Stat. §627.736(4)(c), b) EMATB’s bill was received within thirty (30) days’ notice of the loss, c) EMATB qualifies as a “protected” provider under Fla. Stat. §627.736(4)(c).

8. For reasons unclear to this Court, USAA did not apply Romero’s $250.00 PIP deductible to the first bill received from St. Joseph’s Hospital in the amount of $4,634.78. Inexplicably, instead, USAA applied the $250 PIP deductible to the third bill received from EMATB and processed the first two (2) bills received without any application of the deductible.

9. Based upon the record evidence before the Court and for the reasons set forth below, the Court finds that: a) USAA improperly processed medical bills out of order by applying the $250.00 PIP deductible to the third bill received from EMATB instead of applying the $250.00 PIP deductible to the first bill received from St. Joseph’s Hospital and b) the assignment of benefits executed by Romero on August 24, 2013 is a valid assignment of benefits in favor of EMATB and clearly assigns Romero’s benefits under the policy of insurance to EMATB, including the right to file a lawsuit to collect overdue PIP benefits.

CONCLUSIONS OF LAW

The legal issues presented are whether: 1) USAA improperly processed medical bills by applying the PIP deductible to bills out of order in derogation of Fla. Stat. §627.736(4) and Fla. Stat. §627.739(2) and 2) the assignment of benefits executed by Romero in favor of EMATB conferred standing upon EMATB to pursue this action.

APPLYING THE PIP DEDUCTIBLE OUT OF ORDER

With regard to USAA’s decision to apply Romero’s PIP deductible to the third bill received instead of applying the PIP deductible to the first bill received, it is USAA’s position that even though EMATB’s bill was the third bill received, it should get moved to the “front of the line” as the first “compensable” bill received. However, there is no suggestion by USAA that the bills from St. Joseph’s Hospital and Bay Area Injury Rehab Specialists (first and second bills received) were not compensable. To the contrary, those two bills were paid by USAA (without applying the deductible to either bill). It is EMATB’s position that bills are to be paid, under the PIP statute, as the loss accrues and that, based upon the facts of this case, the $250.00 PIP deductible should have been applied to the first bill received by USAA (St. Joseph’s Hospital) pursuant to Fla. Stat. §627.739.

The Court finds no merit to USAA’s argument and finds the bills were improperly processed out of order by USAA for the following reasons: 1) Fla. Stat. §627.736(4) clearly states that “[b]enefits due from an insurer under ss. 627.730–627.7405 are primary . . . and are due and payble as loss accrues upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730–627.7405” (emphasis added) and 2) with regard to bills that should be applied to a PIP deductible, Fla. Stat. §627.739(2) clearly states that “[t]he deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736” (emphasis added).

There is no dispute that the first bill received by USAA in this case was the bill from St. Joseph’s Hospital in the amount of $4,634.78. Under any scenario, had USAA applied the $250.00 PIP deductible in this case to this first received bill, the deductible would have been exhausted upon doing so. Even under Defendant’s own argument that bills received must be applied to the deductible pursuant to Fla. Stat. §627.739(2), the deductible should have been applied to the first bill received from St. Joseph’s Hospital. Under Fla. Stat. §627.736(4)(c), only $5,000.00 of the $10,000.00 in PIP benefits are to be reserved and held for payment to providers of emergency services and care who are licensed under chapter 458, 459 or 466 and who submit their bills within thirty (30) days’ notice of loss to the carrier (i.e. EMATB in this case). The other $5,000.00 in PIP benefits is available immediately for processing of medical bills from other providers. The Court agrees with EMATB and finds, in this case, that USAA could have, and should have, processed the first bill received from St. Joseph’s hospital by applying the contractual PIP deductible of $250.00 to that bill and then paying the remainder, pursuant to the policy, under Romero’s PIP coverage. Had the bill been properly processed, in this manner, the deductible would have been exhausted, the deductible would not have been improperly applied to the third bill received (EMATB’s bill) and EMATB would have been paid the additional PIP benefits sued upon in this matter.

STANDING/ASSIGNMENT OF BENEFITS

USAA argues that the assignment of benefits at issue in this matter does not confer standing upon EMATB because EMATB is a “different entity” than the “Facility” (St. Joseph’s Hospital) where the services were rendered and that EMATB is not mentioned specifically within the assignment. EMATB argues that EMATB (the emergency physicians who rendered emergency services and care to Romero in the Emergency Room at St. Joseph’s Hospital) undisputably meets the definition of “Provider” within the assignment and that ¶ 17 Assignment of Insurance and Other Benefits of the document clearly assigns all of Romero’s rights and interests under the subject policy to EMATB, a defined “Provider.” The Court agrees that ¶ 17 of the assignment clearly distinguishes between “Facility” and “Provider” and that the document clearly assigns Romero’s benefits under the policy to the “Facility” and the “Provider” (EMATB).

A review of Florida law on the topic of assignments confirms that there are no express requirements that an assignment contain any particular words or terms. Assignments may be express or implied by the circumstances. Tunno v. Robert, 16 Fla. 738 (Fla. 1878); Mangum v. Susser, 764 So.2d 653 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D1216a]. An assignment may be partly in writing, partly parol or it may be by a showing of circumstances in which the debtor is justified in making payment, regardless of whether there is anything in writing or in parol betweent he assignor and assignee. Protection House, Inc. v. Daverman and Associates, 167 So.2d 65 (Fla. 3rd DCA 1964). The law is clear that a valid equitable assignment exists where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be just. See Giles v. Sun Bank, NA, 450 So.2d 258 (Fla. 5th DCA 1984). No particular words or form of instrument is necessary to effect an equitable assignment, and any language, however informal, which shows an intention on one side to assign a right and an intention on the other side to receive it, if there is valuable consideration, will operate as an effective assignment. Id. See also, Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So.2d 94 (Fla. 1865).

Additionally, Florida appellate case law provides excellent guidance on the lack of distinction between a direction to pay and an assignment. See generally, State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990); Schuster v. Blue Cross & Blue Shield of Florida, Inc., 843 So.2d 909 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]; Hartford Ins. Co. of Midwest v. O’Connor, 855 So.2d 189 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2140a]; Orion Ins. Co. v. Magnetic Imaging Systems I, 696 So.2d 475 (Fla. 3rd DCA 1997) [22 Fla. L. Weekly Fed. D1595c]; State Farm Mut. Auto. Ins. Co. v. Gonnella, 677 So.2d 1355 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1799d].

After careful review and consideration of the assignment of benefits upon which EMATB relies upon to assert standing in the instant matter, the Court agrees with EMATB’s position and finds that the document clearly assigns from Romero, to EMATB (“Provider”), “all of my rights and interests to any and all benefits or other recovery of any type whatsoever receivable by me or on my behalf arising out of any policy of insurance insuring me . . .” Such assigned “rights” and “interests” include, but are not limited to, the right for EMATB to file suit to collect payment(s) due and owing under the subject policy of insurance. Accordingly, the assignment of benefits executed by Romero in favor of EMATB conferred standing upon EMATB to pursue this action.

ORDERED AND ADJUDGED that:

1. Plaintiff’s Motion for Summary Judgment is GRANTED.

2. Defendant’s Motion for Summary Judgment is DENIED.

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¹Currently pending before the Supreme Court of Florida on Emergency Physicians’ request that the Supreme Court accept discretionary jurisdiction to review the 5th DCA’s ruling.