25 Fla. L. Weekly Supp. 87b

Online Reference: FLWSUPP 2501PARAInsurance — Personal injury protection — Standing — Assignment — Motion to dismiss for lack of standing is granted where insured assigned benefits to individual physician, not to plaintiff medical provider, and purported assignment only assigns right to collect payments, not right to bring direct action against insurer

SOUTH FLORIDA ORTHOPEDIC ASSOCIATES (a/a/o Oscar Paramo), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 16-005225 SP 26. March 10, 2017. Lawrence D. King, Judge. Jonathan A. Greenberg, The Law Offices of Spencer G. Morgan, P.A., Miami, for Plaintiff. Anthony G. Atala, Kubicki Draper, P.A., Miami, for Defendant.

ORDER GRANTING DEFENDANT’S MOTIONTO DISMISS FOR LACK OF STANDING

THIS CAUSE having come before the Court on February 8, 2017 on Defendant’s Motion to Dismiss for Lack of Standing, and the Court having reviewed the Motion, the entire Court file, the relevant legal authorities, having heard the arguments of the parties’ respective counsels, reviewed the entirety of the record, and having been sufficiently advised in the premises, the Court finds as follows:

FACTS

Oscar Paramo, the Claimant, purchased an automobile insurance policy from the Defendant, State Farm Mutual Automobile Insurance Company. The Policy provided $10,000.00 in Personal Injury Protection (“PIP”) Benefits, contained a $1,000.00 Policy Deductible, and did not have medical payments (“Med-Pay”) coverage. The policy of insurance was governed by the Florida No-Fault (“PIP”) Statute, section 627.736, Florida Statutes (2012).

On November 20, 2015, Oscar Paramo was involved in a motor vehicle accident. Subsequent to the accident, Oscar Paramo received medical treatment from various medical providers, including Dr. Harlan Chiron, M.D. On November 25, 2015, Oscar Paramo executed a document titled “Assignment of Benefits” and allegedly received treatment from Dr. Chiron.

On July 8, 2016, the Plaintiff, South Florida Orthopedics Associates, filed the instant lawsuit alleging in the complaint that they had standing to bring forth this lawsuit by virtue of the purported “assignment” executed by Oscar Paramo. In response to the Plaintiff’s complaint, the Defendant filed the Motion to Dismiss for Lack of Standing claiming that the demand was defective based on two principles: (1) that the purported assignment of benefits relied upon by the plaintiff is merely a directive to pay, and not an assignment of benefits providing the Plaintiff with standing to maintain the present lawsuit; and (2) that the purported assignment assigns payment to Harlan Chiron, M.D., not to the Plaintiff, South Florida Orthopedic Associates.

The Plaintiff, in response, has filed the fictitious name filing of South Florida Orthopedic Associates, as filed by Division of Corporations, indicating that South Florida Orthopedic Associates is a fictitious entity wholly owned by Harlan S. Chiron, M.D., P.A. Harlan S. Chiron, M.D., P.A. is a corporation wholly owned by Harlan Chiron, an individual, who, presumably, is the treating physician of the claimant in this cause of action.

ANALYSIS

The Assignment of Benefits, which is attached to the plaintiff’s complaint, and relied upon by the Plaintiff in alleging that they have standing reads as follows:ASSIGNMENT OF BENEFITS

THE UNDERSIGNED HEREBY ASSIGNS HE BENEFITS OF INSURANCE UNDER THE AUTOMOBILE INSURANCE WITH: State Farm (insurance company)

TO: HARLAN S. CHIRON, M.D. FOR SERVICES RENDERED TO THE UNDESIGNED PATIENT AND COVERED BY PERSONAL INJURY PROTECTION (PIP) COVERAGE UNDER Oscar Paramo (name of insured) POLICY # 59772P778

WITH INSURANCE COMPANY State Farm

AND IN ACCORDINACE WITH FLORIDA STATUTE 627.736(5).

The purported assignment is then allegedly signed by the claimant and dated “11/25/15”. The assignment continues:

THE UNDERSIGNED HEREBY STATES THAT HE POSSESSES ALL APPROPRIATE LICENSES TO FOR THE PRACTICE OF MEDICINE AND ACCEPTS ASSIGNMENT OF INSURANCE BENEFITS FOR SERVICES RENDRED TO: Oscar Paramo (patient) AND TO BE PAID DIRECTYLY TO ME UNDER “ (insured) PERSONAL INJURY PROTECTION (PIP) COVERAGE WITH State Farm (insurance company) AND IN ACCORDANCE WITH FLORIDA STATUTE 627.736(5).

The purported assignment is the allegedly signed by Harlan S. Chiron, M.D., P.A. and dated “11/25/15.” The above language is the entire contents of the document which the plaintiff relies upon to allege that they have standing to bring forth this lawsuit.

The Purported “Assignment” is in favor of an Entity other than the Plaintiff

During arguments, the Defendant addressed the fact that the purported assignment was to the benefit of Harlan S. Chiron, M.D., an individual, and not to any particular entity or corporation. The Assignment states that it is “to: Harlan Chiron, M.D.” and is later accepted by Harlan S. Chiron, M.D. The Plaintiff relies upon the fictititious entity documents indicating that Harlan S. Chiron is the sole owner of Harlan S. Chiron, M.D., P.A.; and Harlan S. Chiron, M.D., P.A. is the sole owner of the fictitious entity: South Florida Orthopedic Associates. The Plaintiff relies on the fact that the actual document is on the letterhead of South Florida Orthopedic Associates.

It is presumed that the document titled “Assignment of Benefits” was drafted by the Plaintiff. The rules of construction are clearly defined when dealing with contracts and documents otherwise purporting to bind parties. Generally, courts have looked to the language of the document rather than its form and caption to determine the legal effect it will have if enforced as drafted. A simple review of the purported “Assignment” shows that it was the intent of the parties to “assign” the benefits of the policy of insurance that the Claimant has with the insurer to Harlan S. Chiron, M.D., and not to any other party. A look at the four-corners of the document does not include anywhere in the body of the purported “assignment” the names “Harlan S. Chiron, M.D., P.A.” or “South Florida Orthopedic Associates.”

In rendering its opinion, the Court here relies on Six Doctors Medical Center, Inc. (a/o/a Robin Vandina) v. State Farm Fire and Casualty Ins. Co., 19 Fla. L. Weekly Supp. 164a (17th Judicial Cir. App. 2011). In Six Doctors, the contents of the assignment of benefits was assigning the insured’s rights to Dr. Paul Fulton, D.C. The Defendant is Six Doctors argued that the assignment of benefits did not assign “her right to file suit against Defendant to Plaintiff.” The trial court granted summary judgment in favor of the insurer, and, upon appeal, the 17th Circuit, in its Appellate capacity, affirmed the trial court’s decision that “there was no question that Ms. Vandina assigned her rights to Dr. Paul Fulton, D.C., yet the underlying action was brought by Six Doctors Medical Center, Inc.” The facts in the instant case are similar to the issue in the Six Doctors’ case, and the Court finds that the purported assignment was for the benefit of “Harlan S. Chiron, M.D.” and not to the Plaintiff herein.

The Purported Assignment of Benefits is Merely a Direction to Pay

When an alleged assignment of benefits is unambiguous, the construction of the terms of the assignment is a question of law for the court. See Peacock Construction Co. Inc. v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla. 1977). “The assignment of PIP benefits is not merely a condition precedent to maintain an action on a claim held by the person or entity who filed the lawsuit. Rather, it is the basis of the claimant’s standing to invoke the processes of the court in the first place.” Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b]. If a party is to give up a right or benefit, it should be unambiguously stated within the four corners of the document. South Brevard Chiropractic & Wellness v. Progressive Southeastern Ins. Co., 12 Fla. L. Weekly Supp. 261a (2004) and Wallace v. Omni Ins. Co., 5 Fla. L. Weekly Supp. 284b (Fla. 6th Jud. Cir. App 1998). Merely using the words “Assignment of Benefits” in the title and the body of the document, without more, is not sufficient to transfer rights in a policy of insurance to a third party. Nile R. Lestrange, M.D. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 155a (2003); Orthopaedic Associates of South Broward, P.A. (a/a/o Georgiana McCarthy-Walker) v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 565a (2003); Terlep Chiropractic, P.A. v. State Farm Mutual Auto. Ins. Co., 22 Fla. L. Weekly Supp. 985a (Fla. 6th Jud. Cir. App. 2015); and Abby Chiropractic Center (a/a/o Linda Leonard) v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 50b (2003).

This Court has previously found that in order for a non-contracting third party to have standing to sue on a policy of insurance, the agreement must contain sufficient language indicating that the assignor is assigning his or her right to bring direct action against the insurer, or, in the alternative, language assigning all of the insured’s benefit or rights under the contract from the insurer. Cicero Ortho-Med Center, Inc. (a/a/o Caridad Quintana) v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 365a (2006).

The unambiguous language contained in the purported “assignment of benefits” relied upon by the Plaintiff to file this suit only indicates that the insured was assigning to Harlan S. Chiron, M.D. the right to collect payments from the insurer, nothing more. The purported assignment, which the Plaintiff relies upon in maintaining this lawsuit, does not provide to the Plaintiff the right to file the instant lawsuit. By its plain language, the document attached to the plaintiff’s complaint is a direction to pay benefits directly “TO: HARLAN S. CHIRON, M.D.” and does not give the Plaintiff the necessary rights to proceed forth against the Defendant for breach of contract. Therefore, it is:

ORDERED AND ADJUDGED:

1. Defendant’s Motion to Dismiss for Lack of Standing is hereby GRANTED.

2. The Plaintiff shall have twenty (20) days from the date of this Order to amend the complaint, if necessary, consistent with the contents of this ruling regarding the purported assignment of benefits attached to the Plaintiff’s complaint.

3. Should the Plaintiff not file an amended complaint within the twenty (20) days consistent with this order, then the Clerk of Courts is instructed to close this matter.