9 Fla. L. Weekly Supp. 820a
Insurance — Personal injury protection — Standing — Assignment — Inconsistent documents — Execution on same day of assignment of benefits and power of attorney which states it is not intended as an assignment and any provisions so interpreted shall be considered null and void — Appeals — Preservation of issues — Issue of trial court’s consideration of unauthenticated power of attorney cannot be raised for first time on appeal — Further, medical provider which admitted authenticity of power of attorney below cannot challenge it on appeal — Where either both documents or the assignment was revoked, the order in which the documents were executed is not an issue of material fact precluding summary judgment — Trial court correctly determined, as a matter of law, that the co-existing documents are inconsistent and a nullity as a matter of law due to their inconsistency
CAMBER COMPANIES SOUTHEAST, LLC, (a/a/o Jamie Vargas), Appellant, vs. NATIONAL INSURANCE ASSOCIATION, A RECIPROCAL, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 02-1409, Division X. County Case No. 00-22782-SC. September 29, 2002. Vivian Corvo Maye, Presiding Judge. Review of a final order of the County Ct., Hillsborough County. Counsel: Alexander Billias, Morgan, Colling & Gilbert, P.A., Orlando, for Appellant. Robert P. Kelly, Law Office of Hyde, Gomer & Derrick, Tampa, for Appellee.
(PER CURIAM.) Appellant appeals the entry of summary judgment against it for lack of standing. The standard of review on summary judgment is de novo. We have jurisdiction.
The facts are as follows: the insured, Jamie Vargas, sought treatment for injuries sustained in a covered incident. In pursuit of treatment, Vargas executed both an assignment of benefits and a power of attorney on the same day.
Because of a dispute over payment of benefits, Appellant served its complaint against Appellee on November 27, 2000. In its complaint, Appellant alleged that Vargas executed an assignment of benefits as contemplated by § 627.736, Florida Statutes, thereby assigning his/her rights, title, and interest under said policy of insurance to Appellant for treatment related to an automobile accident.
On the same day Vargas executed the assignment of benefits in favor of Appellant, he also executed a document entitled “Appointment as Agent-in-Fact with Power of Attorney” (hereafter “Power of Attorney”) at Appellant’s request. Many of the rights this document confers on Appellant are identical to those of an assignee, however, additional language of this document states “[t]his instrument is not intended to operate as an assignment as that term is used in § 627.736, Florida Statutes, and any provision(s) of this instrument that may be interpreted as such shall be considered null and void from the beginning and remaining provision(s) of this instrument shall severed from said provision(s) and will remain in full force, effect, and operation.” Appellee’s counsel discovered this document after the initiation of the lawsuit. The order in which Vargas executed the two documents is unknown. After discovering this document, Appellee moved for summary judgment on the basis that the assignment and the Power of Attorney were inconsistent, in effect canceling out one another, and that Appellant lacked standing to proceed with the suit. The trial court granted final summary judgment in favor of Appellee. This appeal followed.
Appellant contends that the trial court erred as a matter of law when it granted summary judgment in favor of Appellee because it considered the Power of Attorney as evidence despite the fact that it was not properly authenticated as required by Florida Rule of Civil Procedure 1.510. Appellant also contends that assignments are irrevocable, and therefore, the trial court erred in its decision that the assignment and the Power of Attorney cancelled out one another, rendering both a nullity. Finally, Appellant asserts that a material issue of fact exists in that there is no evidence of the order in which the documents were executed that was ever presented to the trial court and that this fact could help determine whether a valid assignment exists. We disagree and affirm the decision of the trial court.
On the issue of the trial court’s examination of unauthenticated documents, in the absence of a transcript, there is no record that Appellant ever raised the issue below. The failure either to do so or demonstrate that it did so renders Appellant unable to raise the issue now. E.J. Associates, Inc. v. The John and Aliese Price Foundation, Inc., 515 So.2d 763 (Fla. 2d DCA 1987) (failure to raise an issue in the trial court results in waiver for purposes of appeal), Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979)(failure of record to demonstrate error requires the appellate court to affirm the decision of the trial court). Even if that were not the case, the record reflects that Appellant admitted in responses to requests for admissions that Vargas executed the Power of Attorney on June 19, 2000, the same day as she executed the assignment. The authority Appellant cites with respect to unauthenticated documents states that such documents are inadmissible “without more.” See e.g. Bifulco v. State Farm Mutual Automobile Insurance Co., 693 So. 2d 707 (Fla. 4th DCA 1997) (merely attaching documents which are not sworn to or certified does not, without more, satisfy the procedural strictures inherent in Florida Rule of Civil Procedure 1.510(e)). An admission by the party constitutes “more,” and, having admitted its authenticity, Appellant cannot challenge it on appeal.
Appellant’s assertion that the timing of the signing of the respective documents is an issue of fact that would preclude the entry of summary judgment is without merit. Appellant suggests that if the assignment of benefits were executed first in time, the subsequent Power of Attorney could not have revoked or cancelled out the assignment of benefits because assignments of benefits under § 627.736, Florida Statutes, are irrevocable. As the following analysis demonstrates, whether or not assignments are irrevocable does not change the outcome that led to the trial court’s decision.
We first consider the outcome in the event the assignment was executed first. In that instance, if assignments are indeed irrevocable, the later-signed Power of Attorney would not have revoked the assignment, notwithstanding language to the contrary, and both documents would remain in force. If assignments are revocable, the Power of Attorney would, by its language, revoke it, and there would be no assignment to confer standing on Appellant. On the other hand, if the assignment were signed after the Power of Attorney, both documents remain in effect just as they do in the first scenario, because the assignment contains no language revoking the Power of Attorney. Thus, either both documents co-exist, or the assignment is revoked, regardless of the order in which the documents were signed, and regardless of whether assignments are irrevocable. The trial court was therefore correct in not considering the order in which the documents were executed an issue of material fact. Rather, the trial court determined that, as a matter of law, the co-existing documents are inconsistent and a nullity as a matter of law because of their inconsistency.
The trial court adopted the holding stated in OGD Diagnostic Rehabilitation Services, Inc. and U.S. Health Center, Inc. v. Allstate Insurance Company, 6 Fla. L. Weekly Supp. 725 (Fla. Co. Ct. – 17th Judicial Circuit 1999) (the medical provider cannot have a patient sign two documents, take an inconsistent position in order to be covered both ways, and “have their cake and eat it too”), and Appellant has provided no compelling reason for this Court to move away from it. It is therefore
ORDERED that the decision of the trial court is AFFIRMED. (Little and Simms, JJ., concur.)
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