9 Fla. L. Weekly Supp. 631c
Insurance — Personal injury protection — Standing — Assignment — Where financial agreement authorizes direct payment to medical provider in one paragraph and states that it assigns benefits to medical provider in another, document is ambiguous as to whether assignment was intended or whether it is direction to pay, and court may consider evidence of parties’ intent — Insurer’s motion to dismiss is denied
CENTER FOR BONE & JOINT SURGERY OF THE PALM BEACHES, P.A. (Patient: Alvin Edelman), Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. SS-01-19539-RD. March 4, 2002. Charles E. Burton, Judge. Counsel: Glenn Siegel, Kane & Kane, Boca Raton, for Plaintiff. Joseph Murasko, West Palm Beach, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS
This case came before the Court on March 4, 2002 upon the Defendant’s Motion to Dismiss. The Plaintiff is represented by Glenn Siegel, Esquire and the Defendant is represented by Joseph Murasko, Esquire. There were numerous cases all dealing with the same issue filed and the parties stipulated that the Order entered in this case would control all cases noticed before the Court. Upon a review of the pleadings filed in this cause and the argument of counsel, the Court finds as follows:
The Plaintiff filed a complaint for personal injury protection benefits pursuant to F.S. 627.730-627.7405, alleging that the Plaintiff furnished medical treatment and expenses for injuries received by the patient. In support, the Plaintiff attached a document titled “Financial Agreement” to the complaint. It is that document which is the subject of the motion to dismiss and is attached to this Order and incorporated by reference herein.
The Defendant contends that this document on it’s face fails to create a legal assignment and therefore the Plaintiff lacks standing to bring this cause of action relying on State Farm Fire and Casualty Co. v. Ray, 556 So.2d 811 (Fla. 5 DCA 1990). The Plaintiff contends that the document is clearly an assignment and in the alternative is ambiguous requiring a determination of the intent of the parties. Bartell v. Allstate Ins. Co., Palm Beach Cir. Ct. Appellate Division, December 13, 2001.
Florida Rule of Civil Procedure 1.130(b) provides that any document attached to the complaint becomes a part of the complaint for all purposes. Moreover, if the document is inconsistent with the facts pled in the complaint, the wording of the document would control. Kent Electric Co. v. Jacksonville Electric Authority, 395 So.2d 277 (Fla. 1 DCA 1981). Finally, a motion to dismiss is designed to test the legal sufficiency of the complaint and not determine issues of fact. Lowery v. Lowery, 654 So.2d 1218 (Fla. 2 DCA 1995).
Here, the document provides in paragraph two: “I hereby authorize direct payment to CENTER FOR BONE & JOINT SURGERY of any insurance benefits otherwise payable to me…” Later, in the same document, it states “I assign the benefits payable for physician services to the physician or organization furnishing the services or authorize such physician or organization to submit a claim to Medicare for payment to me.” The initial determination of whether the contract is ambiguous is a question of law for the Court. Strama v. Union Fidelity Life Insurance Company, 793 So.2d 1129 (Fla. 1 DCA 2001). However, where the terms of a contract are susceptible to different interpretations, extrinsic evidence may be admissible. Friedman v. Va. Metal Prods. Corp., 56 So.2d 515 (Fla. 1952). In construing the alleged assignment document in this case, the Court must consider whether the language is unambiguous where the intent of the parties can be discerned from the four corners of the document. Richter v. Richter, 666 So.2d 559 (Fla. 4 DCA 1995). If the language is not unambiguous, the Court may consider evidence of the parties intent. Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965). In reviewing the document in the instant case, the Court finds that it is ambiguous as to whether or not an assignment was intended or whether the document is a direction to pay.
Accordingly, it is
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED.
__________________AttachmentFINANCIAL AGREEMENT
1. In consideration of the services to be rendered to me, I HEREBY INDIVIDUALLY OBLIGATE MYSELF TO PAY THE ACCOUNT OF CENTER FOR BONE & JOINT SURGERY IN ACCORDANCE WITH THE REGULAR RATES AND TERMS OF CENTER FOR BONE & JOINT SURGERY. Should the account be referred to an attorney or licensed collection agency for collection, I shall pay reasonable attorney’s fees and collection expenses. All delinquent accounts (those not paid within sixty (60) days from the date of service) shall bear interest at the legal rate.
2. I hereby authorize direct payment to CENTER FOR BONE & JOINT SURGERY of any insurance benefits otherwise payable to me for the services rendered at a rate not to exceed the CENTER FOR BONE & JOINT SURGERY regular charges. It is agreed that payment to CENTER FOR BONE & JOINT SURGERY, pursuant of this authorization, by an insurance company shall discharge said insurance company of any and all obligations under a policy to the extent of such payment. I understand that I am financially responsible for charges not covered by this agreement.
I understand that CENTER FOR BONE & JOINT SURGERY shall have the right at any time to refuse to provide medical care or treatment for me. I certify that I am the patient or am duly authorized by the patient as the patient’s general agent to execute this document and accept its terms.
3. I understand that, as a courtesy, CENTER FOR BONE & JOINT SURGERY will file my primary insurance. If after sixty (60) days from the date of service and/or surgery insurance has not paid, the total balance will be considered due and payable.
4. REGARDING MEDICARE ASSIGNMENT: This means CENTER FOR BONE & JOINT SURGERY will accept payment in full for what MEDICARE allows not what MEDICARE pays. It is the patient’s responsibility for the 20% of the MEDICARE allowable for which MEDICARE does not pay. I fully understand that I agree to be responsible for this 20%.
LIFETIME AUTHORIZATION
I certify that the information given by me in applying for payment under Title XVll of the Social Security Act is correct. I authorize any holder of medical or other information about me to release to the Social Security Administration or its intermediaries or carriers any information needed for this or a related Medicare claim. I request that the payment of authorized benefits be made on my behalf. I assign the benefits payable for physician services to the physician or organization furnishing the services or authorize such physician or organization to submit a claim to Medicare for payment to me.
Signed: /s/Alvin Edelman Dated: 02-09-00
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