9 Fla. L. Weekly Supp. 95a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Standing — Assignment — Where insured intended to apply benefits toward her medical care, and medical provider intended transaction to be an assignment, trial court’s finding that documents created assignment and jury verdict predicated thereon are not clearly erroneous despite absence of word “assignment” and insured’s remaining liability for payment — Where insured irrevocably transferred right to apply PIP benefits as remuneration for her medical care, she relinquished her rights to PIP payment and no longer retained control to collect, and medical provider legitimately sued for satisfaction of its assignment — Insurer’s argument attacking lack of consideration for assignment is mistaken because this defense is the privilege of assignor — Assignment is not gratuitous as legal consideration was achieved when insured fully transferred right of payment to medical provider
ALLSTATE INSURANCE COMPANY, Appellant, v. BMW ENTERPRISES, INC., Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 01-360 (08). J. Leonard Fleet*, Judge. Counsel: Wayne S. Koppel, Flaster, Koppel and Bates, Plantation. Kate G. Burnett, Tolgyesi, Katz, Hankin & Katz, P.A., Hollywood.
ORDER AND OPINION
THIS CAUSE comes before the Court on Petitioner’s, Allstate Insurance, appeal of the trial court’s denial of a Motion for Directed Verdict. This Court, having reviewed the briefs submitted, applicable law and otherwise being duly advised in premises, hereby finds and decides as follows:
This Court has jurisdiction. Article V, Sec. 5(b), Florida Constitution, as amended, and Florida Rules of Civil Procedure 9.03(c)(1)(A).
This matter concerns an assignment1 of personal injury protection benefits and the trial court’s findings and jury verdict in favor of assignee, BMW Enterprises. The insured, Cezar, sought chiropractic medical care from the Florida Outpatient Rehabilitation Center to treat her accident injuries. Part of the prescribed treatment involved a Transcutaneous Electrical Nerve Stimulation, TENS, unit.2 BMW Enterprises supplied the TENS unit with a Sales-Rental contract. The bills were submitted to Allstate. On October 22, 1998, Allstate paid a fraction of the $388.00 amount. A later bill, dated December 3, 1998, totaling $336.00 was denied payment. Allstate’s decision to deny benefits was made by its own doctor who opined additional treatments were neither reasonable nor necessary. Respondent sued for payment of treatment based upon an assignment of PIP benefits. Allstate’s motion to dismiss, based upon lack of standing, was denied.
The pertinent language of assignment attacked by Appellant is as follows. First, the language of the LIEN FOR T.E.N.S. UNIT is:
I fully understand that I am directly responsible to said Company for all medical bills submitted for services rendered me and that this agreement is made solely for said Company’s additional protection. I further understand that such payment is not contingent on my settlement, judgment, or verdict by which I may eventually recover said fee.
It is the intent of the undersigned that this assignment is irrevocable. . . .
Second, the Sales-Rental Contract provides:
I hereby authorize payment of medical benefits to BMW for services rendered. I authorize release of any medical information required to process an insurance claim on my behalf. . . All costs of the device and supplies not paid by my insurance company will become my responsibility. . . .
Allstate’s several motions for directed verdict, made at the end of Plaintiff’s case and at the end of the trial, as well as its post-trial motions for directed verdict and/or a new trial, were denied. After judgment was entered upon the jury verdict, this appeal followed in timely fashion.
The judgment of the court below is affirmed.
PRESERVATION OF APPEAL
Before attempting a review, the record must be adequate to support Appellant’s allegations and points of error. See Cees Van Den Boom, et al. v. YLB Investments, Inc., 687 So. 2d 964 (Fla. 5th DCA 1997); Orlando Regional Medical Center, Inc. v. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990). It appears Appellant has included the relevant parts of the transcript for review of the lower court’s order.
Generally, the movant for Directed Verdict must do so at the close of all the evidence. See Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla. 1985) (court affirmed the district court of appeal’s decision to set aside the directed verdict because petitioners had not moved for directed verdict); County Manors Assoc., Inc. v. Master Antenna Services, Inc., 534 So. 2d 1187 (Fla. 4th DCA 1988) (rehearing denied 1989). Here, Allstate properly moved for Directed Verdict following BMW Enterprises’ case-in-chief, its own case, and, then, following the favorable verdict for BMW Enterprises.
STANDING
As in any appeal of a denial of a motion for directed verdict, the appellate court conducts a de novo review, and movant admits the truth of all facts in evidence, and every reasonable conclusion or inference based on those facts are to be viewed in the light most favorable to the nonmoving party. Gersh v. Cofman, 769 So. 2d 407 (Fla. 4th DCA 2000); Thor Bear, Inc. v. Crocker Mizner Park, 648 So. 2d 168 (Fla. 4th DCA 1994) (rehearing denied 1995). Such a decision arrives in this court clothed with a presumption of correctness and will not be disturbed unless the record on appeal clearly reveals an absence of competent substantial evidence to support it. Florida East Coast Ry. v. Dept. of Revenue, 620 So. 2d 1051 (Fla. 1st DCA 1993); Peacock v. Carver, 315 So. 2d 214 (Fla. 1st DCA 1975). An appellate court is prohibited from substituting its judgment for that of the court under review. Diversified Commercial Developers, Inc. v. Formrite, Inc., 450 So. 2d 533 (Fla. 4th DCA 1984).
Here, Allstate’s decry of the trial court lacks the necessary evidentiary support. At trial BMW Enterprises submitted documentary evidence consisting of paid bills and copies of the disputed documents. Allstate proffered no contrary evidence. Apparently, Allstate’s proffer was little more than its own doctor’s testimony as to the reasonableness of additional care. Conceding the character of the evidence submitted by BMW, the documents constitute an assignment of the PIP benefits. Evidently, until deemed unreasonable, Allstate applied PIP benefits for Cezar’s treatment. There is no doubt such payments were made upon Allstate’s acceptance of the disputed documents as assignments. Now, merely by the excrescence and vagaries of litigation, Allstate attempts to retract its earlier recognition; such vacillation is not to be tolerated by the courts.
THE ASSIGNMENT
The trial court found the language and documents now under attack created an assignment of rights. These findings of fact, and the jury verdict based thereon, are presumed correct and will not be disturbed absent a showing of clear error. Oceanic Intern. Corp. v. Lantana Boatyard, 402 So .2d 507 (Fla. 4th DCA 1981); See Altman Cooling Corp. v. Florida Heat & Power, Inc., 305 So. 2d 225 (Fla. 4th DCA 1974). Whether the disputed document created an assignment of insurance benefits is a question of fact to be resolved by the trial court. Garcia v. State Farm Mut. Auto. Ins. Co., 766 So. 2d 430 (Fla. 5th DCA 2000).
Florida has neither established formal requisites for, nor defined the specific language necessary to, constitute or create an assignment of rights. See Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So. 2d 94 (Fla. 1965). Nonetheless, Florida courts have resolved the character of an assignment of rights.
An assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another. See State Farm Fire and Casualty Co. v. Ray, 56 So. 2d 811 (Fla. 5th DCA 1990). Generally, contract rights can be assigned unless forbidden by the terms of the contract itself, or unless the assignment would violate some rule of public policy, a statute, or the contract rights involve obligations of a personal nature. Hall v. O’Neil Turpentine Co., 47 So. 609 (Fla. 1908); New Holland, Inc. v. Trunk, 579 So. 2d 215 (Fla. 5th DCA 1991). The assignment now before the court is not prohibited under policy grounds nor is it disputed Cezar has a present right to PIP benefits. Ms. Cezar intended to apply the benefits towards her medical care and BMW Enterprises intended the transaction to be an assignment. Intention of the parties to the putative assignment is preeminent in the determination of whether there was, in fact, an assignment of rights. See generally Boulevard Nat. Bank; Giles v. Sun Bank, N.A., 450 So. 2d 258 (Fla. 5th DCA 1984). Allstate argues the absence of the word “assignment” and the remaining liability nullify creation of an assignment subvert standing to sue. However, Allstate fails to furnish adequate, substantial evidence to overcome the presumption of correctness. The trial court’s findings and the jury verdict predicated thereon are not clearly erroneous. The trial court’s ruling will not be disturbed.
Allstate’s position is remarkably dissonant from relevant appellate authority. Oglesby v. State Farm Mutual Automobile Ins. Co., 2001 WL 227359 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a] (such a remainder does not invalidate an otherwise valid assignment). There, the court answered affirmatively the question of standing despite an insured’s remaining liability for payment.3
The TENS unit Lien assignment is designed to be a transfer of payment rights. It acknowledged Cezar’s responsibility for payment and created an irrevocable assignment. Payment of the bill was unconditionally due to BMW Enterprises. Similarly, the Sales-Rental Contract transferred the right to PIP benefits. It acted to transfer all payments for treatment deemed reasonable, and acknowledged the discretion of insurance companies. Contrary to Appellant’s suggestion, it does not emasculate BMW Enterprise’s right to seek payment from Allstate.
This view is amply supported by contract jurisprudence. According to the Restatement of the Law, Second, Contracts, § 317 (1981)4: an assignment of a right is a manifestation of the assignor’s intention to transfer it by virtue of which the assignor’s right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance. The Second Restatement of Contracts § 324 generally sets out the Mode of Assignment: the obligee must manifest an intention to transfer the right to another person without further action or manifestation of intention by the obligee. The manifestation may be made to the other or to a third person on his behalf and, except as provided by statute or by contract, may be made either orally or by a writing.
Other persuasive and instructive authorities support the Oglesby decision, e.g.: Corbin on Contracts § 861: “Meaning of assignment”: Grantor extinguishes his relations with others respecting the subject matter and creates similar relations between grantee and others. No particular words or special form of words are necessary to effect an assignment in the absence of statutory provisions prescribing a particular mode or form. 6 Am. Jur. Assignment § 114. Any language, however informal, which indicates the intention of the owner of a claim or chose in action to transfer it is sufficient to vest the property in the assignee. In determining whether an assignment has occurred, the courts look to substance, rather than form. Farnsworth, Contracts §11.3 (1982).
Ms. Cezar’s transfer to BMW was irrevocable and was intended to be a valid assignment of rights. She had a present legal right to apply the PIP benefits as remuneration for her medical care and was entitled to transfer such right as consideration for the medical services and equipment. Even with remainder liability, Cezar relinquished her rights to PIP payment and no longer retained control to collect. BMW Enterprises legitimately sued for satisfaction of its assignment.
Allstate’s argument attacking lack of consideration for the assignment is mistaken. It is well settled in Florida that the defense of lack of consideration in an assignment action is the privilege of the assignor. This is a defense to be asserted as between the original parties to a security interests instrument. Hendricks v. Stark, 126 So. 293 (Fla. 1930); McCampbell v. Aloma Nat’l Bank, 185 So. 2d 756 (Fla. 1st DCA 1966).
Cezar’s right to bring suit is conditioned on an entitlement to apply for PIP benefits for medical services and the equipment. The entitlement exists. The assignment is not gratuitous. Legal consideration was achieved when Cezar fully transferred the right of payment to the medical provider.5 The conditions were met and the right was assigned to BMW Enterprises.
Accordingly, the foregoing considered, Appellee has standing and the decision and judgment of the court below should be, and hereby is, AFFIRMED.
Appellee’s motion for appellate attorney fees is granted.
This matter is returned to the court below for proceedings not inconsistent with this opinion.
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*The Court, with gratitude, herewith acknowledges the contribution of Staff Attorney Curtis LeBlanc to the creation of this opinion.
1An assignment, according to legal usage of the term, is a transfer or setting over of property, or of some right or interest therein, from one person to another; it is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein. 6 Am. Jur. 2d, Assignments § 1.
2The unit is designed to send innocuous electrical signals to nerves relieving the pain signal to the brain.
3The question presented was: WHETHER AN ASSIGNMENT OF BENEFITS BY AN INSURED TO A PROVIDER OF MEDICAL SERVICES UNDER A PERSONAL INJURY PROTECTION INSURANCE POLICY IN WHICH THE INSURER REMAINS LIABLE FOR ANY MEDICAL CARE NOT PAID BY INSURER, CAUSES THE INSURED TO LOSE STANDING TO MAINTAIN A DIRECT ACTION AGAINST THE INSURER.
4Florida courts have adopted various provisions of the Restatement of Laws, Contracts; e.g., this view is supported by the majority view of other jurisdictions; e.g., Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982) (adopting as the law of Florida, Restatement (First) of Contracts § 3469(a)(1) diminution of value theory); Sans Souci v. Division of Florida Land Sales and Condominiums, Dept. of Business Regulation, 421 So. 2d 623 (Fla. 1st DCA 1982) (adopting Restatement’s view that contemporaneous assent or consent is unnecessary for an effective novation); Miller v. Greene, 104 So. 2d 457 (Fla. 1958) (relying on Restatement to support the principle that the contract was not divisible since the promise of marriage was an essential part of the contract.)
5The aforementioned Farnsworth treatise contemplates this situation. An assignment may be gratuitous or for value:
If an assignee gives value for the assignment, it is not gratuitous and is therefore not revocable. It is important to remember that an assignment is a transfer, not a contract (a promise), and to understand that whether a transferee has given value is not the same question as whether a promisee has given consideration. * * * An assignee gives value if he takes the assignment either in exchange for something that would be consideration for a promise, or as security for or in total or partial satisfaction of a pre-existing obligation. Farnsworth at § 11.6.
Cezar’s situation is analogous to one contemplated in Restatement of Contracts, 2d, § 325: Order as Assignment:
(1) A written order drawn upon an obligor and signed and delivered to another person by the obligee is an assignment if it is conditional on the existence of a duty of the drawee to the drawer to comply with the order and the drawer manifests an intention that a person other than the drawer is to retain the performance.
Illustration 3: A writes to B, “Please pay to C the balance due me.” This is insufficient to establish an assignment or to give B notice of an assignment. But the letter would be an effective assignment if delivered to C to pay or secure a debt owed by A to C.
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