8 Fla. L. Weekly Supp. 160a
Insurance — Personal injury protection — Action against insurer by plaintiffs who, while rollerblading, were struck by a vehicle operated by insured — Assignments given by plaintiffs to medical provider did not deprive plaintiffs of right to sue insurer where plaintiffs remained liable to provider for any amounts not covered by the assignments, any amounts insurer might refuse to pay, and attorney’s fees and costs — Where plaintiff stated in her application for benefits that vehicle owned by her was inoperable and swore in her interrogatory answers that car was “not operable and not insured,” fact that insurer learned that car was registered in the two years preceding the accident, although with an expired decal on it, did not rise to level of reasonable proof that plaintiff was not entitled to PIP benefits — With regard to second plaintiff, there was no factual basis to believe that she was related to first plaintiff — On remand, court to enter judgment in favor of plaintiffs upon proper motion
YELITZA AYALA and JAKELINE DELVEQUIO, Appellants, vs. FORTUNE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99- 412 AP. Opinion filed December 5, 2000. On appeal from the County Court, in and for Miami-Dade County, Harvey Goldstein, Judge. Counsel: Adam Lawrence, for Appellants. Diane H. Tutt, for Appellee.
(Before NORMAN S. GERSTEIN, THOMAS S. WILSON, JR. and ELEANOR L. SCHOCKETT, JJ.)
(THOMAS S. WILSON, JR., J.) Appellants Yelitza Ayala and Jakeline Delvequio seek reversal of a summary judgment that was entered in favor of the Appellee, Fortune Insurance Company (“Fortune”), by the trial court. For the reasons expressed below, we reverse.
Appellants were friends and roommates who shared an apartment on Miami Beach. On July 23, 1997, they were rollerblading together on Miami Beach when they were hit by a vehicle operated by an insured of the appellee. Appellants were treated for their injuries at Columbia Miami Heart Institute (“Columbia”). Each appellant signed a document at that time which read in pertinent part:
I hereby assign payment directly to Columbia Miami Heart Institute, and physician(s) accepting this assignment of all hospitalization and medical benefits applicable and otherwise payable to me … I understand that I am financially responsible to the hospital and physician(s) for charges not covered by this assignment or for any and all charges which the insurance carrier declines to pay.
Similarly, Appellants signed a financial agreement which stated:
In consideration of the services to be rendered to the patient, … [the signatory] individually obligates … herself to pay the account of the hospital and physician(s) … should the account be referred to an attorney for collection, the undersigned shall pay reasonable attorney’s fees and collection expense.
The roommates also wrote down the names of their respective mothers as their individual designated health care surrogates; Ms. Ayala wrote “Ramona Ron … Mother” and Ms. Delvequio wrote “Maria Delvequio … Mother”.
Appellee received notice of the claim from its insured and medical bills from Columbia. The insurance company also obtained copies of the assignments signed by the injured parties, as well as the accident report from the Miami Beach Police Department. Appellee wrote letters to Ms. Ayala, indicating that as Florida is a no-fault state, that she would only be eligible for benefits if she did not own a motor vehicle, and did not have any resident relatives who did. As for Ms. Delvequio, Fortune informed her to make a claim on her own automobile insurance pursuant to the no-fault laws.1
In December 1997, Appellants filed application for personal injury protection benefits with Fortune, where only Ms. Delvequio indicated she owned a car which was inoperable at the time of her accident; Ms. Ayala wrote that she was not a car owner. For the next several months, Fortune sent letters to Appellants’ attorney, asking whether Ms. Ayala was related to Ms. Delvequio or whether she owned a car, and requesting proof of the inoperability of Ms. Delvequio’s car. Appellants’ counsel did not respond but instead filed suit for PIP benefits on August 26, 1998.
In response to the interrogatories Fortune sent the Appellants, Appellants confirmed that they were not related and that only Ms. Delvequio was the owner of an inoperable car; Fortune never deposed the two claimants. Fortune nevertheless moved for summary judgment. The basis for Appellee’s argument was that Appellants had no standing to sue for PIP benefits because they had assigned their claims to Columbia. The insurer also argued that because the claimants never responded to their pre-suit demands for further information, the 30-day claim verification period of § 627.736(4)(b), Fla. Stat., never commenced, PIP benefits were not yet due, and that their lawsuit was premature. The trial court granted Fortune’s motion for summary judgment, resulting in this appeal.
Fortune’s summary judgment must be reversed. The assignments Appellants signed, giving Columbia the right to receive payment from the insurer, did not deprive Appellants of their right to sue Fortune. The documents [“Assignment of Benefits” and “Financial Agreement”] executed by Mss. Ayala and Delvequio were not true or complete assignments. This is because the Appellants remained liable to Columbia for any amounts not covered by the assignments, for any amounts Fortune might refuse to pay, and for attorney’s fees and costs. As Appellants retained their liability to Columbia, they retained their right and standing to sue Fortune. See Garcia v. State Farm Mutual Auto. Ins. Co., 2000 WL 1205624, 25 Fla. L. Weekly D2050 (Fla. 5th DCA August 25, 2000) [Section 627.736(5), Fla. Stat. (1995), compelling arbitration, governs suits between the insurer and any person providing medical services or supplies if that person had agreed to accept assignment of personal injury protection benefits, but does not apply to person seeking medical care]; Livingston v. State Farm Mutual Auto. Ins. Co. , 2000 WL 234691, 25 Fla. L. Weekly D533 (Fla. 2d DCA March 3, 2000) [insured’s lawsuit against insurer for assigned claims was barred or rendered premature while health care provider had an unresolved dispute with insurance company and insured did not retain any risk of loss or any contingent liability][emphasis added].
As for the argument that Appellants failed to cooperate in the pre-suit investigation of their claims, Fortune was in possession of at least two separate statements denying that the roommates were related and that Ms. Ayala was a car owner. Ms. Delvequio swore her car was inoperable. Yet, Fortune moved for summary judgment; this was wrong, where there was clearly a factual dispute. Fortune’s position that it could not tell from these documents whether Ms. Ayala was related to Ms. Delvequio because they shared an apartment, and because Ms. Delvequio owned an automobile, Fortune believed without more, that Ms. Ayala had to look to Ms. Delvequio’s PIP policy for benefits. Fortune’s position is legally and factually untenable. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985) [summary judgment movant “must show conclusively the absence of any genuine issue of material fact”].
Burden was on Fortune to disprove Ms. Ayala’s facial entitlement to PIP benefits within 30 days of receiving her claim. Fortune had 30 days after receiving her claim to pay the benefits unless it obtained “reasonable proof to establish that it was not responsible for the payment”; see § 627.436(4)(b), Fla. Stat. As Fortune never received such proof, because Ms. Ayala is not a relative of Ms. Delvequio, there is no factual reason why Fortune has not paid her claim. As for Ms. Delvequio, she is also entitled to benefits; Fortune did not find any “reasonable proof” within 30 days of her PIP claim that her car was operable. Ms. Delvequio stated that her car was inoperable in her PIP application — after being warned that any misrepresentation was a felony — and swore that her car was “not operable and not insured” in her interrogatory answers. The fact that Fortune learned that the car was registered in the two years preceding the accident, although with an expired decal on it, does not rise to the level of “reasonable proof” under the statute. See Jones v. State Farm Mutual Auto. Ins. Co., 694 So. 2d 165 (Fla. 5th DCA 1997).
This court concludes that the judgments in Fortune’s favor against Ms. Ayala and Ms. Delvequio must be reversed. The trial court will enter judgment in favor of both Appellants upon proper motion. See Northern Ins. Co. v. Hampton, 510 So. 2d 649 (Fla. 1st DCA 1987). The trial court should also award attorney’s fees to the Appellants, including appellate fees, upon a proper determination of amount. (GERSTEIN and SCHOCKETT, JJ., concur.)
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1Ms. Delvequio owned a 1988 Nissan, which Fortune discovered when it ran a Department of Motor Vehicles check after she had submitted a claim. Ms. Delvequio maintained that the car was inoperable.
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