5 Fla. L. Weekly Supp. 843a
Insurance — Personal injury protection — Assignment — Waiver — Medical provider, through its conduct, allowed insured to believe that provider intended to collect bill directly from insured and that insured could sue insurer directly, and, accordingly, waived its right to enforce assignment of benefits signed by insured — Finding of waiver further supported by fact that provider accepted tender of payment from insured as full payment of all amounts due without objection, knowing that funds had come from insurer — Provider prohibited from suing insurer separately for same debt — As separate ground for court’s ruling, actions of provider constituted consent to assignor to institute suit against insurer
MEDICAL IMAGING, INC., Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court in and for Broward County. Case No. 97-12805-COCE-56. June 22, 1998. Robert W. Lee, Judge. Counsel: Stacey A. Giulianti, Plantation, for Plaintiff. Christopher L. Kirwan, Ft. Lauderdale, for Defendant.
FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CASE came before the Court on June 19, 1998 for non-jury trial. The Court having received evidence, heard argument, reviewed the relevant case law, made findings of credibility consistent with this judgment, and being otherwise advised in the premises, rules as follows:
FINDINGS OF FACT: This is a PIP case. On May 28, 1997, the Defendant’s insured, Margot Artis, obtained an MRI from the Plaintiff, Medical Imaging, Inc. (hereinafter “Medical Imaging”).1 At that time, in accordance with the standard practices of Medical Imaging2, Artis signed an Assignment of Benefits, the content of which was explained to her by a representative of Medical Imaging. This Assignment contained language that it “became binding upon my insurance carrier [Allstate] upon their receipt of said assignment.” The next day, on May 29, Artis’s attorney’s office, Glantz and Glantz (hereinafter “Glantz”), sent Medical Imaging a letter advising that the law firm represented Artis in this action.3 Medical Imaging sent Glantz a copy of the insured’s complete file which inexplicably did not include a copy of the Assignment.
On June 18, 1997, Medical Imaging sent Glantz a letter, threatening to go against Artis directly if the MRI bill was not paid immediately. Medical Imaging also requested a letter of protection from Glantz, asking that the insured agree to turn over any payment received from any other source. The request for the letter of protection was made in the event any portion of the bill was not covered by insurance. It also put the insured on notice that she may be sued directly. On June 30, 1997, Glantz advised Medical Imaging by telephone that it would be pursuing the collection of these bills by suing Allstate directly. Medical Imaging did not object.
On July 28, 1997, Medical Imaging sent Glantz another demand letter, again threatening to pursue Artis directly. On the same day, the MRI company sent a separate letter to Artis, threatening to file legal proceedings against her if the bill was not paid immediately. No letters were sent to Allstate. Medical Imaging could not explain why it sent these demand letters to the insured when it believed it had an Assignment of Benefits directing collection from the Defendant, Allstate. However, the standard practice of Medical Imaging was not to sue individual insureds, but rather just to threaten them with suit in an attempt to collect balances due. It is clear to the Court that Medical Imaging did not give too much thought to why particular procedures were followed: the Medical Imaging representative testified that these letters were signed because “probably someone stuck it in front of me and said, we need to get these out.” In none of these letters did Medical Imaging acknowledge that it had received the Assignment of Benefits and that it would be seeking payment from Allstate directly. Nor did Medical Imaging ever orally notify Glantz that it had received the Assignment. Although the representative of Medical Imaging testified that the company expected Allstate to directly pay the bill, its actual practices reveal that it expected the patient to bear the burden of paying the bill.
Upon receipt of the first demand letter, Glantz, on behalf of its client Artis, instituted a lawsuit against Allstate on July 7, 1997 for failure to pay the MRI bill. Medical Imaging did not affirmatively tell Glantz to file the lawsuit, but neither did Medical Imaging tell Glantz not to do so. However, Medical Imaging acknowledges that it was reasonable to expect the insured to believe she would be sued by the MRI company if she did not take some action. Moreover, Medical Imaging was not able to document or establish that it had authorized its own counsel to file the instant lawsuit against Allstate. Before authorizing an insured to directly institute suit against an insurer, the standard practice of Medical Imaging would be to execute a written Revocation of Assignment. No such document exists in this case.
After the Glantz lawsuit was filed, the instant lawsuit was filed on July 21, 1997. Although Medical Imaging had then instituted legal action against Allstate directly, it could not explain why one week afterwards, on July 28, it sent additional demand letters to both Glantz and Artis.
The Glantz lawsuit went forward. Allstate was served with the complaint, and, before it was served with the Complaint in this case, it settled the first case by transmitting a check on July 29, 1997 to the Glantz trust account, which Glantz deposited on August 15, 1997. After the funds cleared the trust account, Glantz cut its trust check to Medical Imaging, which received and accepted the tender of the check on August 22, 1997. Medical Imaging thereupon closed the Artis account. The company was clearly aware that this payment was transmitted from Artis’s attorney, and not Allstate directly. Additionally, it is clear that Medical Imaging had negotiated with Glantz to settle the lawsuit because it agreed to waive any remaining balances on both MRIs. Medical Imaging knew that Glantz had received these funds from Allstate. At no time did Medical Imaging inform Glantz that it was itself proceeding against Allstate, although at least five telephone conversations had occurred between Glantz and Medical Imaging in which such a point could have been raised.
Several months later, on March 13, 1998, Medical Imaging reached another agreement with Glantz to accept $100.00 as full and final payment for all remaining professional services rendered to Artis. The tender of this check was received and accepted by Medical Imaging on April 2, 1998.
At no time did Medical Imaging inform Glantz that these checks were unacceptable or that they were insufficient. To the contrary, by closing the account, Medical Imaging acknowledged that as far as the company was concerned, “the case is over with, because payment had been made.”
CONCLUSIONS OF LAW: Medical Imaging argues that two issues control this case: (l) Whether Allstate’s tender of payment after the Medical Imaging lawsuit was filed resulted in a confession of judgment by Allstate, notwithstanding that Allstate was unaware that the Medical Imaging lawsuit had been filed at the time it tendered payment to Glantz; and (2) Whether the Assignment of Benefits to Medical Imaging barred Allstate from making payment to anyone else, including Glantz. Allstate argues that Medical Imaging, through its actions, either consented to the Glantz lawsuit or revoked the Assignment, thus allowing Glantz to sue on behalf of its insured, and further that inequity would result if Medical Imaging were allowed to pursue Allstate in this case. The Court finds that the position of Allstate is supported by the greater weight of the evidence.
Even if the Plaintiff’s positions were legally sound, its conduct, in the Court’s view, amounts to a waiver of the right to enforce the Assignment of Benefits. Waiver can be established only if Medical Imaging knowingly or voluntarily relinquished a known right, or that Medical Imaging engaged in such conduct as to give rise to an inference that it intended to relinquish a known right. Wilds v. Permenter, 228 So.2d 408, 410 (Fla. 4th DCA 1969). The elements of the defense of waiver are as follows:
(1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right.
Taylor v. Kenco Chemical & Mfg Corp., 465 So.2d 581, 587 (Fla. 1st DCA 1985). In the instant case, although the evidence is unclear as to whether Medical Imaging knowingly relinquished a known right, it is quite clear that Medical Imaging engaged in such conduct to give rise to an inference that it intended to relinquish its right to sue Allstate directly. Through its conduct, Medical Imaging continually allowed Glantz to believe that the insured could sue Allstate directly. Its representatives had several telephone conversations with Glantz, and yet Medical Imaging did nothing to dispel Glantz’s belief that it could sue. Further, Medical Imaging sent the demand notices directly to the insured and her attorney, rather than to Allstate. Medical Imaging then accepted the tender of payment from Glantz, accepting it without any objection as full payment of all amounts due and knowing that these funds had come from Allstate.4
As a separate ground for this ruling, the Court believes that the actions of Medical Imaging constituted consent to the assignor (here, the insured through her attorney Glantz) to institute the lawsuit against Allstate. Clearly, under Florida law, the holder of an Assignment of Benefits may consent to the original assignor’s seeking payment directly from the insured. See State Farm Fire & Casualty Co. v. Ray, 556 So.2d 811, 813 (Fla. 5th DCA 1990). The Court finds that such consent was provided in this case. Therefore, because Medical Imaging consented to Glantz’s lawsuit, it could not then sue Allstate separately for the same debt.5 See Parkway General Hospital, Inc. v. Allstate Insurance Company, 393 So.2d 1171, 1172 (Fla. 3d DCA 1981) (as a general rule, a provider of medical services does not have a direct cause of action against a patient’s insurer). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff shall take nothing in this action, and the Defendant shall go henceforth without day.
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1Pursuant to the parties’ stipulation, the testimony of all witnesses was presented to the Court via depositions received into evidence. The Court’s findings of fact are gleaned from a review of these depositions, as well as the other written exhibits admitted into evidence.
2Assignments are signed by each patient, even if they do not have proof of insurance.
3Medical Imaging was actually aware of the Glantz representation as early as May 6, 1997. Artis had previously had another MRI which is not the subject of this action, and Glantz had corresponded with Medical Imaging on this MRI as well. Although a separate MRI, Medical Imaging retained only one file on the insured, Margot Artis, and a review of this file clearly shows that Medical Imaging was aware that Artis was personally represented by counsel.
4Medical Imaging’s acceptance of the tender also likely bars it from denying the existence of the revocation of assignment back to the insured. Cf. 59 CJS Mortgages §508.
5Further, even if the actions of Medical Imaging are not construed as consent in favor of the insured, the Court believes that they nonetheless constituted an implied or equitable revocation of the Assignment of Benefits back to the insured. See Giles v. Sunbank, N.A., 450 So.2d 258, 260 (Fla. 5th DCA 1984).
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