5 Fla. L. Weekly Supp. 831a
Insurance — Personal injury protection — Insured’s action against insurer for unpaid PIP benefits — Assignment — Assignment which was clear and unconditional and assignment under which insured remained responsible to provider only if he provides misinformation were valid assignments of benefits — Authorization to pay, form whereby provider merely agreed to wait for payment, and assignment permitting provider to sue insured in the event provider does not collect from insurance company but foreclosing insured from filing action if insurer failed to pay all outstanding bills are not valid assignments of benefits — Insurer’s motion for partial summary judgment is granted as it relates to those benefits which were assigned by insured to medical providers
ALEXANDER FERNANDEZ, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 97-001663-SC-SPC. August 11, 1998. Michael F. Andrews, Judge. Counsel: Meena M. Lopez, Timothy A. Patrick, P.A., Tampa, for Plaintiff. Jason F. Lamoureux, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR REHEARING, MOTION TO DISMISS AND/OR SECOND MOTION FOR SUMMARY JUDGEMENT AND/OR MOTION FOR PARTIAL SUMMARY JUDGEMENT
I. FACTS
This cause having come to be heard on the Defendant’s Motion for Re-Hearing on Defendant’s Motion for Summary Judgment, and Defendant’s Motion to Dismiss and/or Second Motion for Summary Judgment and/or Motion for Partial Summary Judgment and the Court having considered the oral arguments of counsel as well as written memoranda of law the Court has made the following findings of fact and conclusions of law:
Plaintiff filed a lawsuit against Defendant alleging that the Defendant breached its automobile insurance contract by failing to pay personal injury protection benefits pursuant to Florida Statutes Section §627.736(5). Plaintiff received treatment as a result of an automobile accident occurring on December 29, 1995. Plaintiff treated with several providers including Dennis L. Jones of Northeast Chiropractic Center, D.C., Charles Carringtson, LMT, Biomechanical Trauma Associates, Magnetic Resonance Assoc., Lowell J. Dechl, M.D. and Rehabilitation Systems, Inc.
In its answer the defendant failed to allege any affirmative defenses or specific negative averments relating to plaintiff’s right to sue or capacity to sue. The defendant’s answer also failed to include any demand for arbitration. Defendant took action inconsistent with asserting its right to arbitration by participating in discovery. The defendant filed a motion for summary judgement which was denied. The defendant filed a motion to amend its answer which was granted. In its amended answer defendant stated that the plaintiff having assigned away his benefits and rights under the policy lacked standing to sue. Defendant filed a Motion for Rehearing on its Motion for Summary Judgment or in the Alternative Partial Summary Judgment. Subsequently, defendant filed a Motion to dismiss and/or Second Motion for Summary Judgement and/or Partial Summary judgement alleging that plaintiff did not have standing to bring this suit because he executed an assignment of benefits with each medical provider he treated with. In response plaintiff filed an affidavit stating that it was not his intent to not assign his personal injury protection benefits to his medical providers and he remains personally responsible for all unpaid medical bills.
II. FINDINGS/ANALYSIS
A. Assignment
If there is evidence of a valid assignment on the face of the assignment agreement an affidavit simply denying intent to assign one’s rights or benefits, without more, is insufficient to raise a genuine issue of fact in a motion for summary judgement. Foster v. Weber, 578 So.2d 857 (Fla. 5th DCA 1991).
The threshold question is whether there has been a true assignment of rights and benefits. If there is an assignment the plaintiff’s rights and benefits under his policy properly vest in the assignee. State Farm Fire and Casualty Company v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990). Plaintiff would no longer have a right to sue under the policy. Spears v. West Coast Builders’ Supply Co., et al., 133 So. 97 (Fla. 1931). A legal assignment is a transfer of property or of some interest therein, from one person to another. Unless qualified, it is the transfer of one’s whole interest in that property. 6 Am. Jur. 2d Assignments § 1 (1963). An equitable assignment will be recognized where it is necessary to effectuate the intent of the parties or where to hold otherwise would be unjust. Giles v. Sunbank, N.A., 450 So.2d 258 (Fla. 5th DCA 1984). Any words showing an intention on one side to assign and the other side to receive, if supported by valuable consideration, will operate as an effective equitable assignment. Wallace v. Omni Insurance Company, Case No. 96-6229 CI (Fla. 6th Cir. February 2, 1998) [5 Fla. L. Weekly Supp. 284b]. No particular words are needed for a document to be considered an assignment. Giles at 260. The test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee, id. at 260, and whether the transfer is unconditional. Foster at 859; Zeverino v. State Farm Mutual Automobile Insurance Company, 5 FLW Supp. 631 (Fla. 18th Cir. 1998). While every assignment is a transfer, not every transfer is an assignment. 6 Am. Jur. 2d Assignments § 1 (1963). An assignment is a contract subject to the requirements and dictates of contract law. There must be an offer, acceptance and consideration. Where there is no consideration an assignment cannot lie. Zeverino, at 632.
After conducting an evidentiary hearing as to the validity of the alleged assignments the court finds as follows as to each:
1. The plaintiff has assigned his benefits to Magnetic Resonance Association (Exhibit A and B). The plaintiff is clearly assigning his rights under the policy. He only remains responsible if he provides misinformation. There is a valid offer, acceptance and consideration.
2. The plaintiff has not assigned his benefits to Dr. Lowell J. Deehl, M. D. (Exhibit C, D and E). Exhibit C is entitled “Assignment of Benefits.” However, it further states “[t]his authorization is a direction of payment . . . not an assignment of my rights under my policy.” Further, the document states “[t]his authorization does not constitute an assignment of my rights to sue or pursue a claim . . . against my insurance company.” Although a transfer, this document fails as an assignment. Further, in light of the circuit court’s opinion in Wallace, which is controlling upon this court, this does not qualify as an assignment.
3. The plaintiff has not assigned his benefits to Rehabilitation Systems Inc. (Exhibit F, G, H, I, J and K). The court finds that this agreement lacks consideration. The health care provider stands to lose nothing. If he does not collect from the insurance company he can still sue the plaintiff. However, plaintiff would be foreclosed from filing a cause of action if the insurance company failed to pay all of the outstanding bills.
4. The plaintiff has not assigned his benefits to Dr. Denis L. Jones of Northeast Chiropractic Center. (Exhibit L including all attached Insurance Health Claim Forms) The document is an “Acknowledgment and Understanding” that the doctor is willing to wait for payment. It does not express plaintiff’s intent to assign his rights or benefits or the doctor’s intent to accept the assignment.
5. The plaintiff has assigned his rights and benefits under his policy to Biomechanical Trauma Associates Inc. (Exhibit M including all attached HCFA forms) The language of the assignment is clear and unconditional. There is an unconditional offer and acceptance and proper consideration.
6. The plaintiff has not assigned his rights and benefits under his policy to Charles Carrington. (Exhibit N and all attached HCFA forms) This is nothing more than an authorization to pay. See, Wallace, supra.
B. Arbitration
Plaintiff argues that because the defendant failed to assert his contractual right to arbitration in his initial answer and has acted inconsistent with that right he has forever waived this right under the policy. Florida Statutes 627.736(5) (1995) states in pertinent part:
Every insurer shall include a provision in its policy for personal injury protection benefits for binding arbitration of any claims dispute involving medical benefits arising between the insurer and any person providing medical services or supplies if that person has agreed to accept assignment of personal injury protection benefits.
Pursuant to statute plaintiff’s insurance policy reserves arbitration for cases where the medical provider has agreed to accept an assignment of benefits. It is the assignee (medical provider) with whom the contractual relationship for arbitration exists. If there is no assignee there is no arbitration agreement. It is the assignee who has standing to assert a waiver of the arbitration right. If a party has assigned away her benefits to a medical provider she has divested herself of standing to raise the issue of waiver. See, Spears v. West Coast Builders’ Supply Co, et al., 133 So. 97; State Farm Fire and Casualty Company v. Ray, 556 So.2d 811.
Further, plaintiff’s assertion that because the defendant participated in discovery and acted inconsistent with its right of arbitration defendant has waived its arbitration right fails to recognize that waiver requires the proof of two elements. Plaintiff must also establish that the defendant was aware of its right to arbitrate, that is, the defendant knew at the time it filed its answer that there was an assignment of benefits. Breckenridge v. Farber, 640 So.2d 208 (Fla. 4th DCA 1994). No evidence has been offered to establish that the defendant knew prior to filing his answer or at any time prior to engaging in discovery the plaintiff had assigned his benefits. The defendant has not waived its right to arbitration.
Of the several motions presently being considered by this court is defendant’s Motion for Rehearing. Without further comment the Motion for Rehearing is denied. Presently, however, before this court is also defendant’s Motion to Dismiss and/or Second Motion for Summary Judgement and/or Partial Summary Judgement which is properly considered at this time. It is therefore,
ORDERED AND ADJUDGED that defendant’s Motion for Rehearing is denied. The defendant’s Motion to Dismiss is denied. Defendant’s Motion for Partial Summary Judgement is granted, as it relates to Magnetic Resonance Association and Biomechanical Trauma Associates Inc., only.
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