26 Fla. L. Weekly Supp. 619a

Online Reference: FLWSUPP 2608JRIVInsurance — Personal injury protection — Standing — Validity of assignment — There is no distinction between a direction to pay and an assignment of benefits for purposes of standing, and language indicating that an insured is assigning “any and all causes of action” is not required — Error to dismiss for lack of standing due to insured’s apparent mistake of assigning benefits to himself on contract with provider — Insured’s mistake, at most, creates an ambiguous assignment and a court may not engage in contractual interpretation at the motion to dismiss stage

J AND C IMAGING, INC., a/a/o Jesus Rivero, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-296 AP 01. L.T. Case No. 15-017850 SP 05. October 9, 2018. An Appeal from the County Court for Miami-Dade County. Counsel: Virginia M. Best, Lopez & Best, for Appellant. Diane H. Tutt, Conroy Simberg, for Appellee.

(Before EIG, RUIZ COHEN, and RUIZ, JJ.)

(RUIZ, J.) In his hit song, “I’m Still Standing,” legendary British singer, pianist, and composer Sir Elton John impassionedly notes that despite tribulation, he is “still standing better than I ever did.” Elton John, I’m Still Standing, Too Low for Zero (Geffen Records 1983). The question here is whether appellant, J and C Imaging, Inc. (“J & C”), is similarly “still standing” in the case below due to their own tribulation — a purportedly defective assignment of benefits. As explained herein, the assignment of benefits at issue is sufficient to establish standing to bring suit, and therefore the trial court erred in granting appellee, State Farm Mutual Automobile Insurance Company’s (“State Farm”), motion to dismiss.BACKGROUND

On December 31, 2010, Jesus Rivero (“Rivero”), an insured of State Farm, sustained injuries in an automobile accident. He received services from J & C on January 3, 2011. Rivero signed a form entitled “Assignment of Benefits,” which read:Assignment of Benefits

The undersigned patient hereby assigns the benefits of insurance under the automobile insurance with (insurance company name): State Farm (hand printed) to J and C Imaging Inc. for services rendered to the undersigned patient and covered by Personal Injury Protection (P.I.P.) Coverage under (Insurer’s Name: Rivero, Jesus (hand printed).

In According with Florida Statue (sic) S 627.736 (5) the undersigned further agrees to pay an applicable deductible or co-payment not covered by P.I.P. insurance coverage.

The undersigned hereby accepts assignment of insurance benefits for services rendered to (Patient’s Name): Jesus Rivero (hand printed) and to be paid directly to me under (Insurer’s Name) Jesus Rivero (hand printed). Personal Injury Protection (P.I.P. coverage with (insurance company Name): State Farm (hand printed) in accordance with Florida Statue S 267.736 (sic)

           (signed by insured, Jesus Rivero)     ________________________
           Patient's Signature                        Date 

J & C filed suit on October 25, 2015 pursuant to the aforementioned Assignment of Benefits from the insured. On March 23, 2016, State Farm moved to dismiss, asserting that the Assignment of Benefits was deficient. Specifically, State Farm claimed that (a) the Assignment failed to validly transfer the insured’s rights in the contract to the provider; (b) as such, the provider lacked standing to bring suit; (c) as there was no standing, the trial court lacked subject matter jurisdiction; and (d) the complaint should be dismissed. State Farm further argued that the Assignment merely served as a direction to have the insurer pay a debt or benefits for services rendered to the insured.

The trial court heard the motion on June 29, 2016. State Farm maintained that the Assignment of Benefits was insufficient because the patient was assigning the benefits to himself, and not to the provider, J & C. J & C countered that any alleged defects in the Assignment of Benefits should be raised as an affirmative defense — not in a motion to dismiss. J & C also argued that the patient signed the form, so it was evident he was assigning his benefits to the provider. On July 5, 2016, the trial court entered an order granting State Farm’s motion to dismiss. The Court entered a final judgment on March 8, 2017. This appeal followed.

STANDARD OF REVIEW

We review the trial court’s dismissal of appellant’s complaint for lack of standing de novo. Payne v. City of Miami, 927 So. 2d 904, 906 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2601a]. “In determining whether to dismiss a complaint for lack of standing, we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Id; see also Chandler v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1232a] (“[E]xhibits attached to a complaint ‘are encompassed within the four corners of the complaint and must be considered therewith’ on a motion to dismiss.”) (quoting Abele v. Sawyer, 750 So. 2d 70, 74 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2658c]).

Where the terms of a legal document are impliedly incorporated by reference into the complaint, the trial court may consider the contents of the document in ruling on a motion to dismiss. One Call Prop. Servs., Inc. v. Security First Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]; see also U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So. 2d 74, 76 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2481b] (“In ruling on a motion to dismiss, a trial court is limited to the four corners of the complaint and its incorporated attachments.”).

ANALYSIS

Under Florida law, an insured may assign his or her right to benefits under a contract of insurance. See 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]; USAA Cas. Ins. Co. v. Romm, 712 So. 2d 405, 406 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D804a]. An assignment transfers to the assignee all interests of the assignor in the property or the right to make a claim thereon, and “[c]ourts have recognized that medical service providers can assert claims for PIP benefits against insurers when an insured has assigned them the right to the benefits.” Id (citing Parkway Gen. Hosp., Inc. v. Allstate Ins. Co., 393 So. 2d 1171, 1172 (Fla. 3d DCA 1981)). The effect of such an assignment is to place the insured’s cause of action for such benefits in the provider, and “only the insured or the medical provider ‘owns’ the cause of action against the insurer at any one time.” Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a]; see also Progressive Express Ins. Co. v. McGrath Comm. Chiropractic, 913 So. 2d 1281, 1286 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] (holding that “the assignment of PIP benefits is not merely a condition precedent to maintaining an action on a claim” but also “the basis of the claimant’s standing to invoke the processes of the court”).

State Farm maintains that an assignment which fails to contain language indicating the insured is assigning “any and all causes of action” available under the insured’s PIP policy to the provider fails to qualify as a valid and legal assignment of benefits. However, Florida law makes clear that there is no distinction between a direction to pay and an assignment of benefits for purposes of standing, and an assignment of “any and all causes of action” is not required. See, e.g., Orion Ins. Co. v. Magnetic Imaging Sys. I, 696 So. 2d 475, 476 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1595c] (finding valid assignment where provider’s customers authorized “direct payment of their insurance benefits” to provider); Parkway, 393 So. 2d at 1172 (finding valid assignment where insured “authorized insurer to make direct payment to hospital of any benefits” arising from policy); Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So. 2d 909, 912 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a] (finding language authorizing insurer to make payment directly to provider, but stating that insured would remain financially responsible for any amounts not paid, served as unqualified assignment); State Farm Mut. Auto. Ins. Co. v. Gonnella, 677 So. 2d 1355, 1356 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1799d] (holding assignment existed where insured allowed provider to receive direct payment of benefits from insurer); State Farm Fire & Cas. Co. v. Ray, 556 So. 2d 811, 813 (Fla. 5th DCA 1990) (finding language entitled “Irrevocable Assignment of Benefits” that “set forth the transfer of any proceeds” constituted valid assignment).

Here, just as in the aforementioned cases, the Assignment is an instruction to pay the provider all applicable benefits of insurance, and contains the same features as the assignments addressed in Orion, Schuster, Ray, et al. Consequently, the language at issue unequivocally confers standing upon J & C. Florida law does not require the inclusion of additional language specifically granting the provider the right to bring a lawsuit or causes of action; said verbiage is simply not required to convey standing. See Kagan, Jugan & Assoc., P.A. a/a/o Anthony Johnson v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 108a (Fla. 20th Cir. Ct. App., Mar. 29, 2016) (holding trial court erred in finding PIP assignment of benefits invalid; assignment does not require express language conveying a right to the cause of action or right to sue); Orthopedic Surgery Assocs., Inc., a/a/o Abraham Weiner v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 624c (Fla. 17th Cir. Ct. App., Apr. 17, 2004) (holding assignment that included direction to pay benefits owed under policy was valid; trial court erred in dismissing provider’s PIP suit for lack of standing); see also Professional Diagnostic Reading a/a/o Wilnel Telsaint v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 700a (Fla. 17th Cir. Ct. App., Apr. 16, 2013) (noting assignment need not be signed by the provider when the provider accepts the terms of the assignment by its performance of services); Digital Med Diagnostics v. Allstate Ins. Co., 15 Fla. L. Weekly Supp. 1147b (Fla. 11th Cir. Ct. App., Oct. 2, 2008) (noting that even if a contract creating an assignment is deficient as a legal matter, where the intent of the parties to enter into the assignment is clear, an equitable assignment is created).

To the extent State Farm takes issue with the unartful nature of the Assignment of Benefits in this case — namely that the insured, Rivero, appears to have mistakenly assigned benefits to himself despite an intention to assign benefits to the provider, J & C — this mistake, at most, creates an ambiguous assignment. However, a court may not engage in contractual interpretation at the motion to dismiss stage; instead, standing may be raised as an affirmative defense, and arguments regarding any alleged ambiguity are more appropriate for summary judgment. See, e.g., Hartford Ins. Co. of the Midwest v. O’Connor, 855 So. 2d 189, 190 n.1 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2140a] (noting issue of standing and the effect of a PIP assignment of benefits “were matters to be raised by [insurer] as affirmative defenses, not in a motion to dismiss.”); Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 253 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a] (explaining standing should be raised as an “affirmative defense [which] must be asserted in the responsive pleading and the issue is then determined upon evidence presented or the party’s inability to produce sufficient evidence of its standing.”); Gables Ins. Recovery, Inc. v. Seminole Casualty Ins. Co., 10 So. 3d 1106, 1107-08 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b] (finding summary judgment improper where PIP assignment of benefits ambiguous); Neumann v. Brigman, 475 So. 2d 1247, 1249 (Fla. 2d DCA 1985) (holding trial court erred in resolving contractual ambiguity on motion to dismiss).CONCLUSION

Ultimately, J & C, in the words of Sir Elton John, is “still standing.” The trial court erred in dismissing the complaint for a lack of standing given the valid assignment of benefits. As such, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion. (EIG and RUIZ COHEN, JJ., concur.)