8 Fla. L. Weekly Supp. 125a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 8 Fla. L. Weekly Supp. 406a
Insurance — Personal injury protection — Assignment of benefits to medical provider not supported by valid consideration where it holds insured personally liable to provider in event provider does not collect from insurer and also makes insured personally liable for interest for any balance owed 45 days after service
AMERICAN DIAGNOSTIC INST. (Gozzersing), Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 00 08725-54. October 23, 2000. Zebedee Wright, Judge. Counsel: Katherine Pellizzari, for Plaintiff. Raphael Katz and Allison Dudley, Tolgyesi, Katz, Hankin & Katz, P.A., Hollywood, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come on October 17, 2000 to be heard upon Defendant ALLSTATE INDEMNITY COMPANY’s Motion to Dismiss and the Court having considered the record, having heard argument of counsel and otherwise being duly advised in the premises, finds as follows:
1. On May 8, 2000 Plaintiff filed suit alleging entitlement to benefits owed under a contract of insurance between Walter Gozzersing and Defendant. The Plaintiff alleged standing to sue under an alleged assignment of benefits which was attached to Plaintiff’s Complaint as Exhibit “C”. Plaintiff further alleged that $1,850 was owed to Plaintiff in unpaid Personal Injury Protection Benefits.
2. Defendant submits that Plaintiff lacks standing to sue under the alleged assignment of benefits, because the assignment of benefits lacks valid consideration. The courts have defined an assignment as a transfer or setting over of property or of some right or interest therein, from one person to another, State Farm and Casualty Co. v. Ray, 556 So.2d 811, 812 (Fla. 5th DCA 1990). Further, any language that shows the intent of both parties to perform an assignment will suffice if supported by a valid consideration. Giles v. Sun Bank, N.A., 450 So.2d 258, 260 (Fla. 5th DCA 1984) (emphasis added). The assignment of benefits, attached to Plaintiff’s Complaint is not supported by valid consideration because it holds the insured personally liable to Plaintiff in the event the Plaintiff does not collect from Defendant. Further, it makes the insured personally liable for interest of 1.5% for any balance owed 45 days after service.
The court in State Farm and Casual Company v. Ray, 556 So.2d 811, 812 (Fla.5th DCA 1990) found that an unqualified assignment of benefits transfers to assignee all interest to assignor under the alleged assigned contract. The assignor then has no right to make any claim on the contract, once the assignment is complete, unless authorized to do so by the assignee. Id.
3. Merely because the document relied upon by the Plaintiff is entitled “Irrevocable Assignment of Benefits,” it is not a true assignment of benefits. The Sixth Circuit addressed this issue in Dr. J.M. Bartell v. Allstate Insurance Company, 6 Fla. L. Weekly Supp. 794a (6th Judicial Circuit 1999). In Dr. J.M. Bartell, the court found that although a document relied upon was entitled “Notice of Assignment of Benefits,” the plaintiff did not have standing to sue because the operative language of the document was not sufficient to be a true assignment of benefits. Id. The court reasoned that the document relied upon was merely a direction to pay and there was no indication in the document that the insured intended to give up their rights and benefits. The Court follows Dr. J.M. Bartell in finding that just because the document relied upon in the instant case is entitled “Irrevocable Assignment of Benefits,” the document is not actually a valid assignment of benefits. In reaching this conclusion, the operative language of the document was taken into consideration and nothing in the document evidences a true assignment of benefits. The alleged assignment of benefits is not supported by consideration.
4. By holding the insured liable for unpaid medical bills, the alleged assignment of benefits which the Plaintiff attached as Exhibit “C” is not a true assignment of benefits. In Zeverino v. State
Farm Mutual Automobile Insurance Company, 5 Fla. L. Weekly Supp. 631 (18th Judicial Circuit 1998), the court found that for a document to be a true assignment of benefits, the insured should be relieved of all financial obligation to the healthcare provider. In Zeverino, the document relied upon was entitled “Assignment and Release,” but because the language of the document itself held the insured personally liable to the medical provider, the court found that it was not a valid assignment of benefits. Id.
The language of the document attached to Plaintiff’s Complaint as Exhibit “C” is very similar to the language in the document of Zeverino. In the instant case, by holding the insured personally liable to the plaintiff, the document relied upon is not an assignment of benefits. Additionally, the document has language which makes it appear to be an assignment but the fact that the insured is personally liable negates that language. Furthermore, the court in the Decespedes v. Prudence Mutual Casualty of Chicago, Illinois, 193 So.2d 224, 227 (Fla. 3d DCA 1996) held that “assignments under certain circumstances are to be discouraged, in that they may encourage the presence of officious meddlers who are anxious to volunteer and stimulate litigation.” In the instant case, there is nothing in the language of the alleged assignment which indicates that it could be construed as a valid assignment of benefits. Therefore, the Plaintiff has no standing to bring this suit and the Complaint must be dismissed. Based on the forgoing findings, it is hereby,
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is hereby GRANTED and the Plaintiff’s Complaint is dismissed for lack of standing.
* * *
