24 Fla. L. Weekly Supp. 108a

Online Reference: FLWSUPP 2402AJOHInsurance — Personal injury protection — Standing — Assignment — Document assigning to medical provider all medical and/or surgical benefits to which insured is entitled is valid assignment conferring standing

KAGAN, JUGAN & ASSOCIATES, P.A. a/a/o ANTHONY JOHNSON, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Case No. 15-09 AP. L.T. Case No. 14-851 SC. March 29, 2016. Appeal from the County Court for Lee County; Leigh Frizzell Hayes, Judge. Counsel: Christopher D. Donovan, Naples, for Appellant. Aaron W. Proulx, Tampa, for Appellee.

This is an appeal of a trial court’s granting a motion to dismiss an amended complaint. The issues presented for appeal are as follows:

1. Did the trial court err by finding the language of assignment insufficient to transfer standing to sue Defendant for refusing to pay medical benefits?

2. Did the trial court err by finding that Appellant lacked standing as third-party beneficiary?

For the reason that will be set forth below, this Court finds that the trial court did err in finding the language used in the assignment insufficient to transfer standing, and declines to make a finding as to the issue of Appellant’s status as a third-party beneficiary.

Appellant initiated a suit in small claims court to recover outstanding PIP benefits. Mr. Anthony Johnson, an insured with a PIP policy with Appellee State Farm, was injured in a car accident and sought treatment from Appellant Kagan, Jugan & Associates, a medical care provider. R. 34. Appellant claims that the insured had assigned his rights to the benefits under the insurance policy to Appellant and that Appellee had failed to pay. State Farm moved to dismiss the cause of action on the basis that Appellant’s assignment was not valid and that Appellant therefore lacked standing to sue. A hearing was held on the issue, after which the trial court issued an order granting the motion to dismiss, but permitted Appellant an opportunity to amend its complaint. R. 31. After considering the amended complaint, the trial court again granted dismissal, but this time with prejudice. R. 115.

Appellant argues that the trial court erred in dismissing the complaint because the insured and Appellant expressly stated their intentions by using the terms “assign” and “medical benefits.” Appellant also argues that regardless of the standing issue, case law recognizes that medical providers are intended third-party beneficiaries to promises to pay medical expenses. In contending that it had a valid assignment, Appellant makes alternative arguments as to why the trial court erred in dismissing the complaint: first, that the plain language of the assignment is sufficient under the law of assignments to give Appellant standing to receive payment of the insured’s medical benefits and to sue for nonpayment; second, the language used in the assignment is at least sufficient to create an equitable assignment; and three, if the language is insufficient for the first two points, it at worst creates a factual dispute that can only be resolved at trial through parol evidence. Appellant makes a final alternative argument, which is also its second claim, that Appellant did not need an assignment, as it is an intended third-party beneficiary to the insured’s medical benefits as it is a medical provider.

Appellee argues that the language in the instant case is not an assignment, but rather a directive to pay. It bases its position on a reading of case law that it purports stands for the premise that a valid assignment requires language that reflects a specific intent. Appellee also argues that Appellant is at best only an incidental third-party beneficiary, and therefore without any right to enforce a contract. Appellee also argues that if this Court were inclined to find the language at issue to constitute a valid assignment, then this Court should “affirm the trial court based on Kagan’s invalid demand letter.” Answer Brief, p. 37.¹

Standard

Appellate review of a trial court’s dismissal of a complaint is de novo. Williams v. Gaffin Indus. Services, Inc., 88 So. 3d 1027, 1029 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1261a]. However, the appellate court must confine itself to the four corners of the complaint and accept all allegations as true. Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D97a]; Wilson v. News-Press Pub. Co., 738 So. 2d 1000, 1001 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D1796a] (accord).

In order to determine that Appellant had standing, this Court must find a valid assignment. If one is found, then Appellant had standing to sue for the benefits and the dismissal of the complaint at the trial level was error.

Assignment

Florida law 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 cites omitted). Generally, contract rights are assignable, and under a valid assignment, the assignee “stands in the shoes” of the assignor, meaning she “has the same rights and status that [the assignor did].” Prof’l Consulting Serv., Inc. v. Hartford Life & Accident Ins. Co., 849 So. 2d 446, 447 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1661a] (internal cites omitted); Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So. 2d 909, 911 (4th DCA 2003)[28 Fla. L. Weekly D505a] (explaining that “[u]nder Florida law, an insured may assign his rights to benefits under a contract of insurance. . . . [and that the] effect of such an assignment is to place the insured’s cause of action for such benefits in the provider.”).

Notably, “[b]ecause an unqualified assignment transfers to the assignee all the interests of the assignor under the assigned contract, the assignor has no right to make a claim on the contract once the assignment is complete, unless authorized to do so by the assignee.” Ray, 556 So. 2d at 813. Generally, “once made, an assignment of the insured’s interests in personal injury protection benefits to a medical services provider is irrevocable.” Rittman v. Allstate Ins. Co., 727 So. 2d 391, 394 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D687a]; Oglesby v. State Farm Mut. Auto. Ins. Co. 781 So. 2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a] (stating that in order for an insured to have standing once an assignment has been made, the benefits would have to be reassigned back to the insured). However, because an “assignment is like any other contract . . . [it] can be revoked by the mutual agreement of the parties thereto.” Hartford Ins. Co. of Midwest v. O’Connor, 855 So. 2d 189 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2140a]. Thus, assignments transfer the entire interest to the assignee and, unless there is a mutual agreement to revoke it, are generally irrevocable.

Assignments do not necessarily require a writing. “Any words or transactions which show an intention on the one side to assign, and intention on the other side to receive, if there is value consideration, will operate as an effective equitable assignment.” McClure v. Century Estates, 96 Fla. 568, 583 (Fla. 1928). Similarly, “[a]ny order, writing, or act which makes an appropriation of a debt or funds amounts to an equitable assignment . . .” Id. (internal cites omitted). See also Giles v. SunBank N.A., 450 So. 2d 258, 260 (stating that “[n]o particular words or form of instrument is necessary to effect an equitable assignment” so long as there is evidence of an intention to assign and a corresponding intention to receive). This is because a “court may find an equitable assignment where necessary to effectuate the parties’ plain intent or to avoid injustice.” SourceTrack, LLC v. Ariba, Inc., 958 So. 2d 523, 526 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1419a]. SourceTrack was an “internet provider of purchasing services for businesses.” Id. at 525. It licensed from another company the software it needed to conduct its business. That company was later acquired by Ariba, Inc. Id. There was no written document memorializing the assignment of the software licensing agreement from the initial company to Ariba, Inc., but “SourceTrack treated Ariba as a party to [it], made payments under [it] to Ariba, and subsequently acknowledged that Ariba was a party to the [agreement].” Id. The appellate court found “ample record support for the trial court’s finding of an equitable assignment” based on these facts. Id. at 526. Likewise, there is no requirement in Florida for the parties to use formal language in order to create a valid assignment of benefits; rather, the parties’ intent determines whether an assignment has been created. Boulevard Nat’l Bank of Miami v. Air Metal Indust., Inc., 176 So. 2d 94, 97 (Fla. 1965).

PIP Statute Requires Written Assignment

Generally, unless a “writing is required by statute, an assignment may be oral and proven by parol evidence. Progressive Exp. Ins. Co. v. McGrath Cmty Chiropractic, 913 So. 2d 1281, 1288 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] (Davis, J., concurring). However, under the Florida No Fault Law, a written assignment is necessary. Id. Yet this written assignment may be rather informal, and may consist solely of the insured’s signature on a properly completed invoice, bill or approved claim form. See Florida Statute §627.736(5)(a) (West 2013). Section 627.736(5)(a) provides in pertinent part that

[a]ny physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge . . . a reasonable amount for the . . . services . . . rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution . . . if the insured . . . has countersigned the invoice, bill, or approved claim form . . .”

Fla. Stat. §627.736(5)(a) (West 2013). See also Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So. 2d 1210, 1212 Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a] (finding no written assignment of benefits where bicyclist hit by driver “did not countersign an invoice, bill, or claim form, as required for an enforceable assignment pursuant to Florida’s No Fault laws . . . nor did he sign any other written assignment to right to benefits.”). Consequently, the assignment of benefits in PIP cases in Florida may be transferred either when the insured signs a completed invoice, bill, or approved claim form, or through a written assignment.

Standing

Turning to the specific issue of the medical provider’s standing to sue an insurance company for PIP benefits, the Second District Court of Appeal has explained that the assignment of the benefits is “the basis of the claimant’s standing to invoke the processes of the court in the first place.” McGrath, 913 So. 2d at 1285. As a result, once the insured has assigned the benefits to the provider, “the insured [no longer] has standing to bring an action against the insurer.” Id. This is because only one of the two may “own the cause of action against the insurer at any one time.” Oglesby, 781 So. 2d at 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a]. “[S]tanding depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation.” Accela, Inc. v. Sarasota County, 901 So. 2d, 237, 238 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D990d] (internal marks and cites omitted). It “encompasses not only this sufficient stake definition, but also the requirement that the claim be brought by . . . one who is recognized in the law as a real party in interest, that is the person in whom rests, by substantive law, the claim sought to be enforced.” Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2011) [30 Fla. L. Weekly D680a].

One of the alternative arguments raised by Appellant is that if the language used in the assignment was ambiguous, parol evidence could be introduced to explain away the ambiguity. In Vocelle & Berg, L.L.P. v. IMG Citrus, Inc., 125 So. 3d 843 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D738a], the Fourth District Court of Appeals explained that when “interpreting the intent of the parties in contracting, courts are bound to the four corners of the document if the terms unambiguously express the parties’ intent,” and that it is only when the words of the contract “are susceptible to more than one meaning . . . [that] a court [may] explore parol evidence, indulge in construction, or engage in interpretation.” Id. at 844 (internal cites omitted). Vocelle, which while not a PIP case, is still instructive. The court determined that the “plain language of the assignment” before it was “unambiguous on its face; it specifically explains that the undersigned hereby assigns.” Id. at 845 (internal cites omitted). The court, of course, may not “rewrite an insurance policy or add meaning to it that is not really there,” especially where the “language found in [the] insurance policy is not ambiguous or otherwise susceptible of more than one meaning . . .” Flaxman v. Gov’t Employees Ins. Co., 993 So. 2d 597, 599 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D2543a].

Application

In the instant case, the language used in the assignment at issue reads as follows: “I hereby assign all medical and/or surgical benefits to which I am entitled to Kagan, Jugan & Associates, P.A. A copy or fax of this assignment is as valid as the original.” R. 80. This statement is signed by the insured and dated April 8, 2013. R. 80.

It appears that Appellee challenged the wording of this passage, as it argues in its brief that a valid assignment “must contain express language conveying a right to the cause of action specifically, or conveying all rights under the contract generally.” Answer Brief, p. 2.² It finds the language used in the assignment above lacking because it “merely states that it assigns benefits.” Answer Brief, p. 3. Appellee argues that this language is not an assignment, but rather a directive to pay. In support of this position, it relies on Health Application Systems, Inc. v. Hartford Life & Accident Ins. Co., 381 So. 2d 294 (Fla. 1st DCA 1980). In Health Application, the parties were litigating a clause that provided for the remittance of 9 ½% of the gross monthly premiums to a third party. Id. at 296. The issue was whether this language constituted an assignment or not. The appellate court stated that

[w]e think it is clear . . . that the contractual provision [that the party] receive 9 ½% of the gross monthly premiums . . . does not constitute an assignment. A mere agreement to pay a debt out of a designated fund does not operate as a legal or equitable assignment, since the assignor retains control over the subject matter. Such an agreement amounts only to a mere promise to pay, and does not meet the test of an intention on the part of the assignor to give, and on the assignee to receive, present ownership of the fund.

Id. at 297.

However, the language used in the assignment clause in the instant case does not purport to permit the assignor to retain control over the subject matter. Mr. Johnson signed a statement that declared that he was “assign[ing] all medical and/or surgical benefits to which [he was] entitled” to the provider. (emphasis added). As Florida case law has repeatedly stated,

[n]o particular phraseology is required to effect an assignment, and it may be either in oral or written form, but the intent to vest in the assignee a present right in the thing assigned must be manifested by some oral or written word or by some conduct signifying a relinquishment of control by the assignor and an appropriation to the assignee.

Lone Star Cement Corp. v. Swartout, 93 F. 2d 767, 769-70 (4th Cir. 1938).

Additionally, as mentioned above in Giles, “[n]o particular words or form of instrument is necessary to effect an equitable assignment” so long as there is evidence of an intention to assign and a corresponding intention to receive.” 450 So. 2d at 260. It appears that the language used in this clause demonstrates an unambiguous intention to assign all medical benefits to the medical provider.

Appellee likewise cites to Miller v. Wells Fargo, 540 F. 2d 548 (2d Cir. 1976), and Lone Star Cement Corp., 93 F. 2d at 767 as support for its position that a “mere agreement to pay is legally distinguishable from an assignment.” Answer Brief, p. 16-17.³ In Miller, the federal court explained that “a mere agreement to pay a debt out of a designated fund does not operate as a legal or equitable assignment since the assignor retains control over the subject matter.” 540 F. 2d at 558. It likewise observed that an “assignment cannot exist where an assignor retains control over the fund or any authority to collect or any power to revoke.” Id. (internal cites omitted). Similarly, in Lone Star Cement Corp., a mere agreement to pay is not an assignment because “it does not meet the test of an intention on the part of the assignor to give and of the assignee to receive present ownership of the fund.” 93 F. 2d at 770. Rather, “the intent to vest in the assignee a present right in the thing assigned must be manifested by some oral or written word or by some conduct signifying a relinquishment of control by the assignor and an appropriation to the assignee.” Id. at 769-70 (internal cites omitted). However, this argument, too, appears to be defeated by the term “hereby” used in the following language:“I hereby assign all medical and/or surgical benefits to which I am entitled to Kagan, Jugan & Associates, P.A. A copy or fax of this assignment is as valid as the original.” R. 80. The clause does not say that the insured will — on a date to be determined — assign the medical benefits; his signature on April 8, 2013 affirms that he at that moment intended to, and did, assign them.

Additionally, the instant case is distinct from those in which an insured or a contractor reserves control over the funds and pays another party only a percentage, as in Health Application, or in Ray, one of the cases mentioned earlier. In Ray, the court found that the insured’s instruction to the insurer to pay no more than 20% of the policy’s PIP benefits “failed to create an assignment . . . for the simple reason that [the insured] did not transfer his interest in the policy to another party. To the contrary, he merely reapportioned his own benefits.” 556 So. 2d at 812-13. “Because an unqualified assignment transfers to the assignee all the interests of the assignor under the assigned contract, the assignor has no right to make a claim on the contract once the assignment is complete, unless authorized to do so by the assignee.” Id. at 813. In the instant case, it would appear that this language constitutes an assignment as Appellant and the insured intended an assignment by using the words “assign,” “hereby,” “all,” and “medical benefits.” Thus, it appears that it was error for the trial court to find that there was no assignment.

To the extent that Appellee argues that the assignment must contain express language conveying a right to the cause of action specifically, or conveying all rights under the contract generally, that position does not appear to be borne out by controlling case law. The two district court of appeals opinion, Patel v. Boers, 68 So. 3d 380, 381 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D1894a], and Foster v. Foster, 703 So. 2d 1107, 1108 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2561b], that Appellee argues “are examples of how to correctly create a true assignment sufficient to confer standing” do not require any specific language. Answer Brief, p. 24.⁴ Rather, they are cases that simply have assignment clauses that include the language Appellee believes should be required.

To the extent that Appellee argues that the language used by Appellant is not specific enough, it appears that it is relying on decisions from sister circuits as authority for this position. Normally, a review of such decisions would be in order, but because this very circuit has recently reviewed some of this persuasive authority when it upheld similar language as a valid assignment so as to give the provider standing to sue the insurer for failing to pay, there is no need to do so here.

This Court does not need to address Appellant’s alternative arguments that the language was ambiguous and required parol evidence for several reasons, not least of which is because Appellee points out that this argument was not raised at the trial level and has therefore not been properly preserved for appeal. As the record appears to bear this out, this argument need not be addressed.

Third Party Beneficiaries

Appellant also argues that regardless of the standing issue, case law recognizes that medical providers are intended third-party beneficiaries of PIP policies. Appellee argues that Appellant is at best only an incidental third-party beneficiary, and therefore cannot enforce a contract.

In Orion Ins. Co v. Magnetic Sys. I, 696 So. 2d 475 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1595c], the appellate court explained that “[w]hile the policy is between [the insurer] and its insured, [providers are] . . . [and] have been recognized as third-party beneficiaries of insurance contracts.” Id. at 478 (internal cites omitted). See Rittman, 727 So. 2d at 394 (quoting Orion). Additionally, the Florida Supreme Court speaks of medical service providers as third party beneficiaries who may sue to enforce the prompt payment provision of the HMO Act in Foundation Health v. Westside EKG Assocs., 944 So. 2d 188 (Fla. 2006) [31 Fla. L. Weekly S669b]. In Foundation Health, the Court “recogniz[ed] that medical service providers previously have been considered intended beneficiaries of insurance contracts under Florida law,” and “extend[ed] the same recognition to HMO contracts.” Id. at 194. The Court re-emphasized this a few pages later and noted that a federal court had applied Florida law when it stated:

[a]s recognized by the Fourth District, Florida law recognizes medical service providers as intended beneficiaries of insurance contracts. See Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F. 3D 677, 680 (11th Cir. 1999) (applying Florida law to determine that medical service providers are third-party beneficiaries to a contract between a health insurer and its subscriber); see also Orion, [696 So. 2d at 478] . . .”).

Foundation Health, 944 So. 2d at 197 (emphasis added).

In contrast, in Parkway General Hospital, Inc. v. Allstate Ins. Co., 393 So. 2d 1171 (Fla. 3d DCA 1981), the court noted that the plaintiff had conceded that a “third party beneficiary theory . . . cannot be extended to create some separate cause of action on behalf of the hospital or physician. Id. at 1072. In Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985), the Florida Supreme Court discussed the fact that injured parties entitled to benefits were at one point considered to be third-party beneficiaries to liability insurance policies. Id. at 279. In McCarson, an insurer was sued for wrongful death and the intentional infliction of emotional distress in addition to its failure to pay on an underlying insurance contract. Id. at 278. The Court found that the dependent of the insured was not a third-party beneficiary and therefore had no cause of action for intentional infliction of emotional distress or wrongful death. Id. at 279-80. In its reply, Appellant argues that the Parkway court never actually addressed the issue and urges the Court to look to case law examples “specifically recognizing providers as third-party beneficiaries to PIP policies.” Reply Brief, p. 9.⁵ The cases to which it cites are Orion, Rittman, and Foundation Health, all three of which have been discussed above. However, this Court does not need to determine this issue as it is apparent that Appellant had a valid assignment.

This Circuit Has Recently Found that Medical Providers have Standing in Such Cases

Moreover, an appellate banc from this circuit has recently decided in a relatively similar Lee County appeal that a medical provider had standing to sue the insurer. In that case, Orthopedic Specialist of SW Florida, P.A. v. State Farm Mutual Auto. Ins. Co., No. 14-AP-42 (Fla. 20th Jud. Cir. Nov. 10, 2015) [23 Fla. L. Weekly Supp. 712a], the appellate banc considered assignment language from the insured that she “hereby assign[ed] all insurance benefits to which [she was] entitled including, but not limited to, Personal Injury Protection (PIP) and/or Medicare benefits to [the provider], in exchange for medical treatment and/or medical services rendered to the undersigned by the aforementioned Doctors.” Id. at 7. The appellate banc in this case examined this language and noted that “at issue here is whether a person has a right to sue to enforce their right to benefits when the assignment language includes only an assignment of benefits without any mention of an assignment to sue.” Id. at 11. It observed that there did not appear to be any “Florida District Court of Florida Supreme Court case law on this specific question,” although the circuit and county courts were divided on the issue, some even within the same circuit. Id. The banc reviewed some of these differing decisions and ultimately concluded that a person may only sue if they have a right to benefits. Id. at 12. Therefore, if an insured assigns the benefits to the medical provider, it would logically follow that the provider would at the same time receive the right to sue. Id. at 12-13. Consequently, the language used was found to be a valid assignment. Id. at 13.

While this assignment had more specific language than the one at issue in the instant appeal, it also used the terms “hereby,” “assign,” “all,” and “benefits.” It specified the benefits as insurance benefits while the language in the instant case identifies them as “medical” benefits, but that difference does not appear to this Court to be fatal to the claim, because as has been stated before, no particular words are needed but rather an intention to make an assignment. The words in the clause in the instant case meet this criteria. Thus, as the language used in the instant case is similar to that used in the Orthopedic Specialist case decided by this circuit, it likewise appears that a similar result should be reached.

Lastly, it appears that it may not have been procedurally proper for the issue to have been raised in a motion to dismiss. O’Connor, 855 So. 2d at 190 n.1 (explaining in footnote that standing typically is an argument that should be raised as an affirmative defense rather than in a motion to dismiss). Additionally, it would seem that “a motion to dismiss should not be used as a substitute for a motion for summary judgment or a motion for judgment on the pleadings.” Wilson, 738 So. 2d at 1002 (internal cites omitted).

To the extent that Appellee urges this Court to consider upholding the trial court’s ruling on the basis that the demand letter was invalid, this Court notes that it cannot do so as the lower court expressly stated that it was “not ruling on the issue of pre-suit demand letter.” R. 115. Mendelson v. Great W. Bank, F.S.B., 712 So. 2d 1194, 1197 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1508a] (“We cannot address on appeal an issue that has not been ruled upon by the circuit court.”) (Internal cites omitted); Akers v. City of Miami Beach, 745 So. 2d 532 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2704a] (accord): Stark v. State Farm Fla. Ins. Co., 95 So. 3d 285, 289 n.4 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1446a] (accord).

Accordingly, as the purported assignment appears to express an intention to transfer the insured’s entire interest in his medical benefits to the medical provider the moment that he signed it; as such, it would seem to be a valid assignment and Appellant, therefore, had standing to sue. Consequently, it appears that the trial court erred in dismissing the complaint and that the lower court’s ruling should therefore be REVERSED, and he case REMANDED. (CORBIN, BRODIE, and LABODA, JJ., concur.)

__________________

¹This Court notes that according to the pagination employed by counsel and used in the traditional formatting of briefs, this page number is actually page 37. However, it is page 49 of the electronically filed document #31847493.

²As mentioned earlier, the pagination employed in the brief differs from that used by the Clerk for perfectly legitimate reasons. Accordingly, the pages referenced herein are pages 14-15 of the electronically filed document #31847493.

³The pages referenced herein are pages 16-17 of the electronically filed document #31847493.

⁴The page referenced herein is page 34 of the electronically filed document #31847493.

⁵The page referenced herein is page 13 of the electronically filed document #35234312.