5 Fla. L. Weekly Supp. 631b
Insurance — Assignment — Personal injury protection — Motion for summary judgment denied on claim that insured executed assignment of benefits in favor of treating physician whose treatment and bill is at issue — Document signed by insured is not an assignment of benefits and holds insured personally responsible to treating physician by its express terms — For a document to be true assignment of benefits, insured should be relieved of financial obligation to health care provider, and health care provider should be willing to accept insured patient’s right to pursue insurance company directly if denial of benefits is made — Offer of judgment — Motion to strike insurer’s proposal for settlement granted — Because conflict exists between proposal for settlement statute and section 627.428, which allows for recovery of attorney’s fees only by insured in lawsuit for breach of contract, section 627.428 applies
NICHOLAS ZEVERINO, JR., Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 97-2745-CC20U. March 31, 1998. Donald L. Marblestone, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came to be heard upon Defendant’s Motion for Summary Judgment. The Court has heard argument of counsel and reviewed applicable law.
In its motion, Defendant alleges that Plaintiff executed an assignment of benefits in favor of the treating physician whose treatment and bill is at issue in this case, Francis W. Brooks, D.O. Defendant alleges that because Plaintiff executed an assignment of benefits, Plaintiff does not have standing to bring this lawsuit under Florida Statute 627.736(5).
The language contained in the purported assignment Plaintiff signed in favor of his physician reads as follows: “ASSIGNMENT OF PAYMENT. My insurance company is hereby requested and authorized to pay direct to FRANCIS W. BROOKS, D.O. any monies due him on account. Further, I agree to pay FRANCIS W. BROOKS, D.O. the difference, if any, between the total amount of his charges and the amount paid him by the insurance company. It is further understood that the undersigned agrees to pay FRANCIS W. BROOKS, D.O. the full amount of his charges, should my condition be such that it is not covered by my policy or if for any reason the insurance company refuses to pay my claim.”
The threshold issue on this matter is whether the language contained in the document signed by Plaintiff constitutes an assignment of benefits.
The unreported opinion of the Circuit Court of the Eighteenth Judicial Circuit acting in its appellate capacity reviewing the case of Nationwide Mutual Fire Ins. Co. vs. Simms, Case No. 96-19186-AP, involved a nearly identical issue and is binding on this court. In Simms, the trial court denied the insurer’s motion to compel arbitration where the insurer signed a document the language of which read as follows: “ASSIGNMENT & RELEASE. I hereby (sic) grant permission to Neuro Diagnostic Center 1051 Port Malabar Blvd., Suite #5, Palm Bay, Florida, 32905 to release any pertinent information to the above insurance company upon request, and I also authorize payment directly to the above clinic for the surgical and/or medical benefits for its services as described herein, I understand that I am financially responsible for those charges not paid by my insurance.” (emphasis in the original opinion)
The Circuit Court held that although the above portion of the form was styled assignment and release, the operative language contained within the form did not create an assignment of benefits. The form only authorized the insurer to pay the health care provider directly and lacked any language which would assign any of the insured’s benefits under her policy to the health care provider. Further, the insured was made personally responsible to the provider if payments were not made by her insurer.
The purported assignment in the Simms case is essentially identical in material respects to the purported assignment in the instant case.
The document signed by Mr. Zeverino is not an assignment of benefits and holds Mr. Zeverino personally responsible to his physician by its express terms. For a document to be a true assignment of benefits, the insured should be relieved of financial obligation to the health care provider, and the health care provider should be willing to accept the insured patient’s right to pursue the insurance company directly if a denial of benefits is made.
The case of Nationwide Mutual Fire Ins. Co. vs. Simms is binding authority upon this Court, and therefore the Defendant’s Motion for Summary Judgment is hereby DENIED.
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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE
DEFENDANT’S PROPOSAL FOR SETTLEMENT
THIS CAUSE came to be heard upon Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement. The Court has heard argument of counsel and reviewed applicable law.
Defendant filed a Proposal for Settlement pursuant to Florida Statute 768.79 and Rule of Civil Procedure 1.442. Plaintiff argues that the proposal for settlement statute is not available to Defendant because it directly conflicts with Florida Statute 627.428 which allows for the recovery of attorney’s fees only to the insured in a lawsuit for breach of contract, and thus is a “one way” attorney fee statute.
The Court finds that there is a conflict between the two statutes. The conflict is resolved under the authority of Florida Statute 768.71(3) which states that “[i]f a provision of this part is in conflict with any other provision of Florida Statutes, such other provision shall apply.” Therefore, the other provision, Section 627.428, applies.
This issue appears to be one of first impression as it has not been decided by any court whose authority is binding upon this court. However, at least two reported opinions of trial courts in Florida have addressed this same issue and struck defendant’s offer of judgment in PIP cases holding that the offer of judgment statute is in direct conflict with Florida Statute 627.428. Cruz v. Allstate Ins. Co., 5 Fla. L. Weekly Supp. 303 (Fla. 11th Cir. Ct. Nov. 12, 1997); Holcomb v. Fortune Ins. Co., 4 Fla. L. Weekly Supp. 479 (Fla. Dade Cty. Ct. July 26, 1996). While this court does not find these authorities binding, their reasoning is persuasive.
Therefore, Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement is hereby GRANTED.
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