8 Fla. L. Weekly Supp. 323a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Standing — Absent assignment, medical service provider lacks standing to claim PIP benefits — No merit to argument that by failing to pay within thirty days insurer is precluded from asserting lack of standing — Insurer promptly paid insured for same bill that is now claimed by medical services provider
SAL MARTINGANO, D.C., P.A. and SAL MARTINGANO, D.C., P.A. as an Assignee of PATRICIA ARENELLA, Assignor and/or as Third Party Beneficiary, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2000-CC-011673. March 5, 2001. David E. Silverman, Judge. Counsel: Scott R. Dwyer and Merrily T. Longacre, Melbourne, for Plaintiff. Christopher A. Layman, The Turner Law Firm, L.L.C., Melbourne, for Defendant.FINAL JUDGMENT
This cause coming before this Court on 22nd day of February, 2001 on the Motion for Final Summary Judgment filed by the defendant, and the Court having reviewed and considered the pleadings, the motion, any affidavits, deposition or other sworn statements, any responses to requests for admissions, any stipulations between the parties and the memoranda filed in support of and in opposition to the motion and having heard and considered the argument of counsel and having been otherwise advised in the premises,
The Court finds as a matter of fact and concludes as a matter of law, as follows:
It is undisputed that the plaintiff, a medical service provider, did not obtain an assignment of benefits under the insured’s PIP policy. The operative document is entitled, “Direct Payment Authorization Without Assignment of Benefits” and together with the document entitled “Our Office Policy on Insurance Assignment” it evinces an unmistakable intention not to grant or accept any assignment.1
The document entitled “Direct Payment Authorization Without Assignment of Benefits” was signed by the insured the day after her accident and reads, in part, as follows:
This authorization for direct payment should not be deemed an assignment of benefits in that I, the patient, retain all rights to enforce my insurance contract. . . .
It has never been my intent to assign the right to enforce my insurance contract to the undersigned medical provider nor has it been the intent of the medical provider to accept assignment of the right to enforce the contract.
The case of Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So.2d 55 (Fla. 2000) tended to confirm that the assignment confers upon a medical provider standing to claim benefits under a PIP policy. Nationwide Mut. Fire Ins. Co. held that the portion of Section 627.736(5)(c), Florida Statutes, requiring mandatory arbitration was unconstitutional. To a substantial extent Nationwide Mut. Fire Ins. Co. predicated that holding on the right of an assignee to access to the Courts. Finding that Section 627.736(5) “prohibits medical provider-assignees from pursuing a breach of contract claim in court”, the Nationwide Mut. Fire Ins. Co. Court went on to state that,
The right of an assignee to sue for breach of contract to enforce assigned rights predates the Florida Constitution. See Robinson v. Nix, 22 Fla. 321 (1886). As an alternative to seeking redress in the courts, section 627.736(5) provides for arbitration pursuant to the provisions of Florida’s Arbitration Code. For the reasons set forth herein, we find that this is not a reasonable alternative. 753 So.2d at 57 to 58.
Plaintiff’s memorandum states, in part, “Whether or not a the [sic] assignment is valid, O’Brien [sic] clearly says the doctors [sic] a third party beneficiary.” [Bold in original.] Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Final Summary Judgment Based on the Direct Pay and Assignment Issues, page 3. Neither Orion Ins. Co. v. Magnetic Imaging Systems I, 696 So.2d 475 (Fla.App. 3rd Dist. 1997) nor any other appellate case holds that absent an assignment, a medical service provider has standing to claim PIP benefits.2
The holding of Orion approving the arbitration statute was disagreed with by Delta Casualty Co. v. Pinnacle Medical, Inc., 721 So.2d 321 (Fla. 5th DCA 1998) (en banc), which was affirmed by Nationwide Mut. Fire Ins. Co., supra. Even assuming the continued vitality of Orion, the issue of the necessity of an assignment was not directly addressed and appears to have been assumed as Orion held that, “the statutory No-Fault regime provides medical service providers like Magnetic with the ability to collect via assignment statutorily mandated PIP insurance benefits.” 696 So.2d at 477. Contrary to the plaintiff’s contention, it appears more reasonable to conclude from Orion and Nationwide Mut. Fire Ins. Co. that the medical service provider acquires the standing of an intended third party beneficiary by virtue of the assignment.3
The omission to require an assignment would place insurers in the position of being uncertain as to whether the medical provider or the insured should be paid and expose them to multiple claims for the same bill, as is alleged to be the case here. See also, Superior Ins. Co. v. Libert, 2001 WL 85545, 26 Fla. L. Weekly D381 (Fla.App. 5th Dist., Feb 02, 2001), for a recent discussion of the importance of a valid assignment.4
The plaintiff’s alternative argument is that by failing to pay within thirty days, the insurer is precluded from asserting a lack of standing. Jones v. State Farm Mutual Automobile Insurance Company, 694 So.2d 165 (Fla. 5th DCA 1997) holds otherwise and binds this Court. See also, Allstate Ins. Co. v. Schall, 2000 WL 1854102, 26 Fla. L. Weekly D8 (Fla.App. 4th Dist. Dec 20, 2000) and AIU Ins. Co. v. Daidone, 760 So.2d 1110 (Fla.App. 4th Dist. 2000). Moreover, the effect of that doctrine, as enunciated in Perez v. State Farm Fire and Cas. Co., 746 So.2d 1123 (Fla.App. 3rd Dist. 1999), review granted, United Auto. Ins. Co. v. Rodriguez, 767 So.2d 464 (Fla. 2000), is to prevent insurers from sitting on their hands and refusing to pay legitimate claims without any reasonable basis for such refusal. In the instant case it appears the insurer promptly paid the insured for the same bill that is now claimed by the medical services provider and, therefore, Perez would not apply.
It is hereby ORDERED and ADJUDGED as follows:
The said Motion for Final Summary Judgment is hereby granted.
The plaintiff, SAL MARTINGANO, D.C., P.A. and SAL MARTINGANO, D.C., P.A. as an Assignee of PATRICIA ARENELLA, Assignor and/or as Third Party Beneficiary, shall take nothing by this action and the defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, shall go hence without day on the plaintiff’s claims.
The Court reserves jurisdiction to award court costs and attorneys fees, as provided under applicable law.
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1While the plaintiff does not contend that these documents constitute a valid assignment, the document entitled “Our Office Policy on Insurance Assignment” would appear to be insufficient as it was dated June 12, 2000, subsequent to the payment of the bills was made by the insurer to the insured and after the filing of the lawsuit.
2The plaintiff apparently misidentified “Orion” as “O’Brien” in his memorandum.
3Conversely when an insured makes an unqualified assignment effectively transferring to the assignee all the interest of the assignor under the contract, “the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee.” State Farm Fire & Casualty Co. v. Ray, 556 So.2d 811, 813 (Fla. 5th DCA 1990).
4Under Section 627.428(1), Florida Statutes, attorney’s fees are only available to, “the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured. See Roberts v. Carter, 350 So.2d 78, 79 Fla. (1977).” Superior Ins. Co. v. Libert, 2001 WL 85545, 26 Fla. L. Weekly D381 (Fla.App. 5 Dist., Feb 02, 2001).
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