23 Fla. L. Weekly Supp. 555a
Online Reference: FLWSUPP 2306IRVIInsurance — Personal injury protection — Standing — Assignment in name of physician rather than plaintiff medical provider — No merit to claims that insurer waived right to challenge assignment and could not challenge assignment due to lack of privity — Summary judgment on standing issue is precluded where affidavits of insured and physician clarifying relationship of physician to provider and intent of insured create factual issues
INTERNAL MEDICINE OF VERANDA PARK, P.A., a Florida Corporation (assignee of Irving, Errol), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC-8715-O. September 15, 2015. Tina L. Caraballo, Judge. Counsel: David Hwalek, Florida Advocates, Dania Beach, for Plaintiff. Marci Matonis, Luks, Santaniello, Perillo & Jones, Orlando, for Defendant.
ORDER DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT RE: LACK OFSTANDING and DEFENDANT’S MOTIONFOR §57.105 SANCTIONS RE: LACK OF STANDING
THIS CAUSE having come before this Court for hearing on August 28, 2015 on the Defendant’s Motion for Final Summary Judgment Re: Lack of Standing and Defendant’s Motion for §57.105 Sanctions Re: Lack of Standing, and the Court, having reviewed the motion, the evidence, applicable legal authority and heard argument by counsel, finds and decides as follows:Factual Background
Errol Irving [“Insured”] was insured under a policy of insurance for PIP benefits that was in effect at the time of Insured’s automobile accident that occurred on August 29, 2008. The Insured received an examination from the Plaintiff on September 5, 2008 for a charge of $500. The Defendant paid $276.13 for the examination. The Plaintiff filed this lawsuit for $123.87. [$500 @ 80% = $400 – $276.13 payment = $123.87]. In response to Plaintiff’s lawsuit, the Defendant stated in its ninth affirmative defense “The document through which the Plaintiff claims standing is not a valid assignment of benefits. Therefore, Plaintiff lacks standing to bring this lawsuit.” Thereafter, the Defendant filed its Motion for Final Summary Judgment Re: Lack of Standing and Defendant’s Motion for §57.105 Sanctions Re: Lack of Standing alleging that the assignment of benefits was to Loaknauth Ramkishun, M.D., not to the Plaintiff, Internal Medicine of Veranda Park, P.A.
In response to the Defendant’s Motion for Final Summary Judgment Re: Lack of Standing and Defendant’s Motion for §57.105 Sanctions Re: Lack of Standing, the Plaintiff filed the affidavit of the Insured, and Loaknauth Ramkishun, M.D.
The Insured’s affidavit attached the document titled “ACKNOWLEDGMENT OF LIABILITY ASSIGNMENT OF BENEFITS”, and the affidavit stated that the Insured intended to transfer to Internal Medicine of Veranda Park, P.A. “the benefits under the insurance policy with the applicable automobile insurance carrier as well as the right to obtain direct payment from the insurer and the right to bring suit against the insurer directly in the event of a claim dispute over the Provider’s charges.”
Loaknauth Ramkishun, M.D.’s affidavit also attached the document titled “ACKNOWLEDGMENT OF LIABILITY ASSIGNMENT OF BENEFITS”, and the affidavit stated that he, Loaknauth Ramkishun, M.D., is the owner of Internal Medicine of Veranda Park, P.A., and further stated “The term ‘You’ in the clause entitled ‘ASSIGNMENT OF RIGHTS/BENEFITS’ is meant to be INTERNAL MEDICINE OF VERANDA PARK, P.A., the facility that billed the services rendered to Errol Irving and received partial payment from United Automobile Insurance Company; the insurer’s payment was made payable to Plaintiff, using Plaintiff’s Federal Employer Identification Number.” Said affidavit also stated “The intent of this assignment is and always has been to assign PIP benefits to INTERNAL MEDICINE OF VERANDA PARK, P.A., as all medical and billing records indicate this clearly.”Conclusions and Finding of Law
Notwithstanding Plaintiff’s arguments that the Defendant waived its right to challenge the assignment of benefits and that Defendant could not challenge the assignment because it lacks privity with the assignment, this Court disagrees with Plaintiff’s argument. See Open MRI of Orlando, Inc. [a/a/o Raquel Ramos] v. State Farm, 17 Fla. L. Weekly Supp. 731a (Fla. 9th Judicial Circuit, Circuit Court in Appellate Capacity, 2010). Despite the Defendant’s reliance on the case of Vincent Preziosi, D.C., a/a/o Dennis Anderson v. Progressive Express Insurance Company, 16 Fla. L. Weekly Supp. 635a (Fla. 9th Judicial Circuit, Circuit Court in Appellate Capacity, 2009), this Court finds the facts distinguishable. This Court is persuaded by the reasoning in the case of Six Doctors Medical Center, Inc. a/a/o Robin Vandina v. State Farm, 19 Fla. L. Weekly Supp. 164a (Fla. 17th Judicial Circuit, Circuit Court in Appellate Capacity). In Six Doctors, the court relied upon the reasoning of Gables Insurance Recovery, Inc. v. Seminole Cas. Ins. Co., 10 So. 3d 1106, 1108 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b], stating
In Gables Insurance, the Third District Court of Appeal explained that a discrepancy as to the identity of medical provider could be rectified upon the injured insured’s affidavit which confirms the correct identity of the medical provider. On the record here, it is undisputed that Six Doctors did not provide such an affidavit. While Six Doctors contends that the issues do not require them to bring forth a transcript of the hearing, this Court’s review is limited accordingly. For example, any effort by Six Doctors to clarify its relationship to Dr. Fulton at the hearing is simply not before this Court. Further, there is nothing in the records where the injured insured, Ms. Vandina, submitted an affidavit which identifies Six Doctors Medical Center as the medical provider to whom she actually assigned her PIP benefits or suggest that Dr. Fulton and Six Doctors are the same business entity.
This Court concludes and finds that although the Defendant did not waive its right to challenge the subject assignment of benefits, the affidavits of the Insured and Loaknauth Ramkishun, M.D. create an issue of fact sufficient to preclude Defendant’s Motion for Final Summary Judgment.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment Re: Lack of Standing is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant’s Motion for §57.105 Sanctions Re: Lack of Standing is DENIED.
