8 Fla. L. Weekly Supp. 311b
Insurance — Personal injury protection — Assignment — Insurer’s motion to dismiss assignee’s complaint to recover PIP benefits for submitted medical bills because the assignment of benefits is not supported by consideration denied — There is consideration for both the assignee and assignor in assignment of benefits — Either doctor or medical care provider and patient are forgoing or assuming rights that they would not otherwise have under normal circumstances — County court decisions cited by insurer to support its arguments are not binding upon court
MEDICAL SPECIALISTS AND DIAGNOSTIC SERVICES, as assignee of Audrey Moore, Plaintiff, vs. AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CC001-180. March 14, 2001. C. Jeffery Arnold, Judge. Counsel: Sean M. McDonough, Orlando. Alexander Billias, Orlando.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This cause having come before the Court on February 20, 2001, on Defendant’s Motion to Dismiss, both parties appearing through counsel, having presented argument and this Court having reviewed the applicable case law, the Court does hereby
ORDER, ADJUDGE AND FIND as follows:FACTS AND PROCEDURAL BACKGROUND
1. Plaintiff, MEDICAL SPECIALISTS AND DIAGNOSTIC SERVICES, as assignee of Audrey Moore, filed this personal injury protection law suit to recover payment for submitted medical bills that were reduced by Defendant, AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY.
Defendant has filed a Motion to Dismiss, wherein it alleges that the assignment of benefits attached to Plaintiff’s Complaint is not a valid assignment of benefits because it is not supported by consideration.
3. Defendant specifically alleges that Plaintiff lacks standing to bring this suit because the assignment fails to relieve the assignor, Audrey Moore, of all financial obligation to the assignee, Medical Specialists and Diagnostic Services.
4. Defendant further alleges that under Florida Statutes § 627.736, only unqualified assignments of benefits, which absolve the assignor of all financial obligation for medical bills and treatment, can be valid in personal injury protection law suits.
5. Defendant has cited American Diagnostic Inst. v. Allstate Indem. Co., 8 Fla. L. Weekly Supp. 125a (Broward County Ct. 2000) and Zeverino v. State Farm Mut. Auto. Ins. Co., 5 Fla. L. Weekly Supp. 631 (Seminole County Ct. 1998) in support of its argument.
6. Defendant has also cited State Farm Fire and Casualty Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990) for the definition of an unqualified assignment of benefits.
7. Plaintiff alleges that under Garcia v. State Farm Mut.Auto. Ins. Co., 766 So.2d 430 (Fla. 5th DCA 2000) and Livingston v. State Farm Mut. Auto. Ins. Co., 2000 WL 234691 (Fla. 2d DCA 2000) [25 Fla L. Weekly D533], qualified assignments, wherein the assignor retains financial obligation for the medical bills at issue, are valid and enforceable under Florida Statutes § 627.736.
8. The assignment of benefits attached to Plaintiff’s Complaint in the instant case states, in part,
I understand that I remain personally liable for the total amounts due to the Office for their services. I further understand and agree that this Assignment Lien and Authorization does not constitute any consideration for the Office to await payments and they may demand payments from me immediately upon rendering services at their option.
9. Plaintiff further alleges that the qualified assignment of benefits in the instant case does not lack consideration because, inter alia, Plaintiff could have simply demanded immediate payment from the assignor as soon as it learned that the Defendant had reduced the submitted medical bills at issue. If this had occurred, the assignor would have had no other choice but to tender payment to the Plaintiff for the reduced medical bills and then seek indemnification from the Defendant.
10. In addition, Plaintiff submits that it did not demand immediate payment from the assignor, but instead currently stands in the place of the assignor in this litigation, thereby exposing itself to, inter alia, interrogatories and depositions, with no guarantee of eventual payment from the Defendant. Plaintiff alleges that this clearly is sufficient consideration under the assignment of benefits.
11. Furthermore, Plaintiff argues that if this Court accepts the Defendant’s argument and finds that assignments of benefits must be unqualified and irrevocable to be valid in personal injury protection law suits, doctors and medical providers who accept assignments of benefts could never seek payment directly from an assignor for a deductible, co-payment, or even if the assignor did not have insurance coverage at the time of the assignment.
12. Similarly, Plaintiff argues that if this Court finds that all assignments of benefits accepted by medical providers in personal injury protection law suits must be unqualified and irrevocable, a medical provider who accepts an assignment of benefits could never seek payment directly from the assignor, even if the assignor refused to perform all conditions precedent to the policy, such as unreasonably refusing to attend an Examination Under Oath or intentionally making a material misrepresentation in her application for insurance.
13. Lastly, Plaintiff asserts that if all valid assignments of benefits accepted by medical providers in personal injury protections law suits must be unqualified and irrevocable, a medical provider who accepts an assignment of benefits could never seek payment directly from an insured who unreasonably refused to attend an independent medical examination.LAW AND ANALYSIS
14. Assignments of benefits, as well as assignments of other contractual rights, have been traditionally recognized and upheld under common law.
15.Assignments of benefits are contemplated by Florida Statutes § 627.736.
16. To the extent that assignments are allowed by Florida Statutes § 627.736, assignments should be recognized and enforced by the Court.
17. There is consideration for both the assignee and assignor in an assignment of benefits. Either the doctor or medical care provider and the patient are foregoing or assuming rights that they would not otherwise have under normal circumstances.
18. It is to the advantage of the medical community and the insurance industry that assignments of benefits be utilized and honored.
19. Furthermore, the Florida District Courts of Appeal decisions in Garcia v. State Farm Mut. Auto. Ins. Co., 766 So.2d 430 (Fla. 5th DCA 2000), Livingston v. State Farm Mut. Auto. Ins. Co., 2000 WL 234691 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D533], and State Farm Fire and Casualty Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990) are binding on this Court and supersede the County Court decisions cited by Defendant in its Motion to Dismiss.
20. Accordingly, the County Court decisions cited by Defendant, American Diagnostic Inst. v. Allstate Indem. Co., 8 Fla. L. Weekly Supp. 125a (Broward County Ct. 2000) and Zeverino v. State Farm Mut. Auto. Ins. Co., 5 Fla. L. Weekly Supp. 631 (Seminole County Ct. 1998), are not binding upon this Court.
It is therefore, ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is hereby DENIED in its entirety.
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