8 Fla. L. Weekly Supp. 817c
Insurance — Personal injury protection — Dismissal — Assignment — Attachment of assignment of benefits complaint by provider claiming PIP benefits is not required — However, because section 627.736(5)(a) requires some sort of written instrument for insurer to make direct payments to provider, provider cannot maintain cause of action for nonpayment without written instrument, and instrument must be attached to complaint pursuant to rule 1.130(a) — Where provider was given opportunity to cure defect, but rather than doing so, asked for and received a dismissal with prejudice, circuit court has no choice but to affirm dismissal
ARMENIA SPINE CENTER, INC. as assignee of Mark Honey, Appellant, vs. METROPOLITAN GENERAL INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 01-3691, Division X. L.C. Case No. 00-18470-SC-K. September 12, 2001. Dick Greco, Jr., Judge. Appeal of a decision of the County Court for Hillsborough County, Myers, Eric R., County judge. Counsel: Gary R. Jodat, Bradenton, for Appellant. Michael C. Clarke, St. Petersburg, for Appellee.
(PER CURIAM) Appellant appeals an order of the trial court dismissing its complaint for failure to attach a copy of the assignment of benefits. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(a). We affirm the decision of the trial court.
Appellant filed a Statement of Claim against the Appellee in the County Court alleging a breach of contract against Appellee for failing to pay insurance benefits to its insured’s medical provider. In that Statement of Claim, Appellant named itself as the assignee of the insured. Appellant also alleged that it had accepted an assignment from the insured within the body of the Complaint, without specifying whether the assignment was written or oral. In response to the Statement of Claim, Appellee filed a motion to dismiss, arguing that Appellant had failed to comply with Florida Rule of Civil Procedure 1.130 because it did not attach the assignment of benefits to its complaint. The county court dismissed the complaint on the ground that Florida Rule of Civil Procedure 1.130 requires the attachment of an assignment of benefits to the complaint, but gave Appellant an opportunity to amend. Rather than amending the complaint and attaching the assignment, however, Appellant continued to argue that it was not required to attach the assignment. Appellant never set forth any reason for not attaching the assignment. The court again held that Florida Rule of Civil Procedure 1.130 required the attachment of an assignment of benefits to the complaint, and Appellant specifically requested that the complaint be dismissed with prejudice. This appeal followed.
Appellant argues that assignments can be oral, and that, therefore, it was not required to attach a copy of the assignment to proceed with the case and relies upon Parkway General Hospital v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3d DCA 1981) in support of this contention. However, Parkway General deals with a written policy which was in the possession of the opposing party, and those facts were alleged in the complaint. It is therefore inapplicable to the case before us.
In general, assignments need not be in writing to be valid. Mangum v. Susser, 764 So. 2d 653 (Fla. 1st DCA 2000). Although it would seem to be in conflict with the prevailing law on oral agreements, Rule of Civil Procedure 1.130, which requires the attachment of documents to complaints, was adopted to apprise a defendant of the nature and extent of cause of action to enable that defendant to plead with greater certainty. Sachse v. Tampa Music Co., 262 So.2d 17 (Fla. 2d DCA 1972). It does not serve to require attachment of an agreement to a complaint when an agreement is oral. See Kartell v. New Horizons of the Treasure Coast, Inc., 710 So.2d 739 (Fla. 4th DCA 1998). Under certain circumstances, the failure to attach even a written assignment is not fatal to a pleading. Sachse, cited above; Parkway General Hospital v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3d DCA 1981). Here, Appellant provided no reason for the failure to attach the alleged assignment.
Notwithstanding the foregoing, however, section 627.736(5)(a), Florida Statutes, requires some sort of written instrument; at a minimum a bill, invoice, or claim form approved by the Department of Insurance which is counter-signed by the insured, for the insurer to make direct payment to the health care provider. See Hartford Ins. Co. of Southeast v. St. Mary’s Hospital, Inc., 771 So.2d 1210, 1212 (Fla. 4th DCA 2000) (without a valid assignment counter-signed by the insured, hospital lacked standing to sue). If the insurer cannot make direct payment to the health care provider without such written information, it follows that the health care provider cannot maintain a cause of action for nonpayment without it. Likewise, if a written instrument is required to be actionable, it must be attached pursuant to Rule 1.130(a).
The trial judge did give Appellant the opportunity to cure the defect, however, rather than doing so, after rearguing the issue, Appellant specifically asked for, and received, a dismissal with prejudice. We therefore have no choice but to affirm the trial court’s decision.
It is therefore ORDERED and ADJUDGED that the decision of the trial court is AFFIRMED.
* * *
