24 Fla. L. Weekly Supp. 726a
Online Reference: FLWSUPP 2409OCAMInsurance — Personal injury protection — Standing — Assignment — Validity — Assignment executed by insured prior to date of accident did not confer standing on medical provider to file suit for benefits related to accident — Lack of standing cannot be cured after suit is filed
CENTRAL PALM BEACH PHYSICIANS & URGENT CARE, INC. D/B/A TOTAL MD a/a/o Allan Ocampo, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502015SC009382XXXXSB (RS). August 2, 2016. Paul A. Damico, Judge. Counsel: Desmon L. Andrade, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Max M. Nelson, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINALSUMMARY JUDGMENT BASED ON PLAINTIFF’S INVALIDASSIGNMENT OF BENEFITS AND LACK OF STANDING
THIS CAUSE came before the Court on July 25, 2016 for hearing on Defendant Progressive’s Motion for Final Summary Judgment Based on Plaintiff’s Invalid Assignment of Benefits and Lack of Standing, and the Court having reviewed the file, record, pleadings, relevant legal authorities, considered the arguments of counsel and being otherwise sufficiently advised in the premises, the Court finds as follows:
BACKGROUND, PROCEDURAL HISTORY, FACTS
Defendant was served with this one-count PIP breach of contract suit on October 30, 2015. Plaintiff alleged that Progressive’s insured, Allan Ocampo, was involved in a motor vehicle accident on December 28, 2014, treated with Plaintiff on dates of service January 6, 2015 through May 22, 2015, and that additional benefits remained due and owing under the auto insurance policy Progressive issued to Mr. Ocampo. To support its claim that Plaintiff had standing, Plaintiff attached a document titled “Assignment of Benefits” to its Complaint and pre-suit demand letter, which was dated December 22, 2014 and thus pre-dated the December 28, 2014 date of loss.
On November 30, 2015, Defendant filed its Answer, alleging within its Affirmative Defenses that “Defendant asserts that the assignment attached to the Complaint and Demand Letter is legally defective and Plaintiff lacks standing to proceed with the instant action” and “Plaintiff failed to serve a valid pre-suit demand letter pursuant to Fla. Stat. 627.736(10). Plaintiff is precluded from asserting this action for the underlying benefits. Specifically, Plaintiff failed to attach a valid assignment of benefits.”
Also on November 30, 2015, Defendant filed its Motion for Final Summary Judgment Based on Plaintiff’s Invalid Assignment of Benefits and Lack of Standing. In support, Defendant filed and notified of its reliance on Plaintiff’s Complaint and the “Assignment of Benefits,” which pre-dated the loss. On July 19, 2016, Plaintiff filed its Response brief, and an Affidavit of Allan Ocampo in which he averred that the document titled “Assignment of Benefits” dated December 22, 2014 was indeed signed by him on December 22, 2014, but that he intended that this document, which was signed in connection with and following a distinct December 4, 2014 motor vehicle accident and PIP claim, would apply to the December 28, 2014 loss as well. During Mr. Ocampo’s deposition, filed on July 11, 2014, Mr. Ocampo acknowledged that he did not execute a written assignment of benefits to Plaintiff following the December 28, 2014 loss, which is at issue in this suit. The parties proceeded to the summary judgment hearing on July 25, 2016.
RATIONALE AND CONCLUSIONS OF LAW
Plaintiff lacks standing to file or maintain this lawsuit because the December 22, 2014 Assignment of Benefits pre-dated the December 28, 2014 loss. Rights and benefits to an insurance claim do not accrue until after a loss. Plaintiff’s failure to obtain a written assignment of benefits following the December 28, 2014 date of loss is fatal to its claim. To demonstrate standing to file a PIP suit on behalf of an insured, a medical provider must provide a written assignment of benefits that is executed after the relevant date of loss, no later than the time it serves its pre-suit demand letter. The unambiguous statutory language within section ten of the PIP Statute makes clear that a provider that intends to file suit on behalf of an insured must present a written assignment of benefits to an insurer within its pre-suit demand letter: “The notice must state that it is a ‘demand letter under s. 627.736′ and state with specificity: 1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.” Fla. Stat. § 627.736(10) (2013); see also Sarasota Memorial Hospital (a/a/o Raul Betancourth) v. Auto-Owners Ins. Co., 22 Fla. L. Weekly Supp. 1085b (Fla. 12th Jud. Cir. Cty. Ct. 2015) (citing the statutory demand letter requirement in support of the holding that “[t]o have standing to sue an insurer for PIP benefits on behalf of the insurer’s insured, a medical provider must have a written assignment of benefits.”) (citing Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] (Davis, J., specially concurring and noting that an equitable assignment of benefits is insufficient in PIP cases)). Because of this requirement, it was necessary that Plaintiff obtain and present a written assignment of benefits to Defendant following the second loss, no later than the time that it submitted its pre-suit demand letter.
As clarified in McGrath, standing must exist pre-suit, and Plaintiff’s attempt to acquire or communicate standing mid-suit without a supporting written assignment of benefits is unavailing. McGrath, 913 So. 2d at 1285 (“[T]he plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.”). Indeed, “At any one time, only the insured or the medical provider ‘owns’ the cause of action against the insurer for PIP benefits.” Id. (citing Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a]); accord Restoration 1 of Miami, Inc. (a/a/o Dianne Carter) v. USAA CIC, 20 Fla. L. Weekly Supp. 1214a (Fla. 19th Jud. Cir. 2013) (granting insurer’s motion for final summary judgment because plain language of assignment did not demonstrate that insured assigned rights and benefits, and insured therefore “retained” her rights and benefits). Without a valid written assignment of benefits executed and provided before suit is filed, a medical provider does not sufficiently communicate, or manifest, its right to sue for PIP benefits. As was the case in McGrath, an affidavit filed by a claimant and a medical provider after suit is filed is not sufficient to confer standing or create a genuine issue of material fact on this issue, due to this pre-suit standing requirement. Id. At 1288. Even if a written pre-suit assignment of benefits was not required, here, the claimant’s mid-suit affidavit concerning his intention to assign benefits would not create a genuine issue of material fact, as it contradicted the claimant’s deposition testimony, in which he disclaimed knowledge of what an assignment of benefits is. See Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954) (holding that affidavit that contradicts prior deposition testimony does not create an issue of fact).
An assignment of benefits is a contract. Basic principles of contract law should therefore be applied when determining whether the required, written, assignment of benefits properly confers standing to a medical provider. “Although contracts are to be construed in order to give effect to the intent of the parties, it is a well settle principle of contract law that where the terms of a contract are unambiguous, the parties’ intent must be determined from within the four corners of the document . . . In the absence of ambiguity, the language itself is the best evidence of the parties’ intent and its plain meaning controls.” Burns v. Barfield, 732 So. 2d 1202 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D1159b]. Here, Defendant’s summary judgment evidence, the assignment of benefits dated December 22, 2014, is unambiguous and its plain language controls. It pre-dates the loss at issue. Given that an assignment of benefits in Florida PIP cases must be in writing and must be provided no later than the time a pre-suit demand letter is provided, and given that the plain language of the document Plaintiff relied on in support of its claim that it had standing pre-dated the date of loss, it is hereby:
ORDERED AND ADJUDGED THAT Defendant’s Motion for Final Summary Judgment is hereby GRANTED. Plaintiff’s claim is hereby DISMISSED. The Plaintiff shall take nothing by this action and the Defendant shall go hence without day. Defendant is the prevailing party in this action. Accordingly, the Court RESERVES jurisdiction to determine attorneys’ fees and costs owed to Defendant.
