9 Fla. L. Weekly Supp. 365a
Insurance — Personal injury protection — Standing — Letter executed by insurer, promising to indemnify insured if her medical provider initiated legal action to collect unpaid balances, does not result in enforceable amendment to insurance contract that divests insured of standing to sue in her own capacity — Assignment — Although insured executed an assignment to one medical provider, she retained standing as to other medical providers — Authorizations for direct payment on HCFA forms did not give rise to assignments, equitable or otherwise — Despite fact that remaining outstanding balances are so stale that the health care providers cannot now go after insured for their balances, where action being taken by insured may properly be taken, and it was timely, statute of limitations argument is without merit — Error for trial court to enter summary judgment in favor of insurer — Remand to determine reasonableness of insurer’s reductions in payments
Additional ruling in this case at 10 Fla. L. Weekly Supp. 119b
CHERYL WARD, Plaintiff/Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County, Civil Division. Case No. 01-7593, Division X. County Case No. 00-9176 SC. Opinion filed April 1, 2002. Counsel: William C. Rocker, Timothy A. Patrick, P.A., Tampa, for Appellant. Karen A. Barnett, Tampa, Appellee.
(PER CURIAM.) In this personal injury protection (PIP) case, several issues are presented for this court’s consideration. The first is whether a letter to Appellant, promising to indemnify her if her healthcare provider initiates any legal action to collect unpaid balances, constitutes an amendment to the insurance contract and divests Appellant of standing to sue in her own capacity. This court has held in at least two cases that such indemnification letters, as executed by State Farm in this case, do not result in an enforceable amendment to the insurance contract. See Wells v. State Farm Mutual Automobile Insurance Co., 8 Fla. L. Weekly Supp. 350 (13th Judicial Circuit, March 8, 2001), cert. denied, 798 So.2d 739 (Fla. 2d DCA 2001), and Jordan v. State Farm Mutual Automobile Insurance Co., appellate case no. 01-6903 (Fla. 13th Judicial Circuit February 28, 2002) [Fla. L. Weekly Supp. 284a]. The reasons for those decisions include that greater coverage is not afforded in the instance that gave rise to the correspondence (Wells), and that the technicalities for amendments to the policy were not observed because the changes were not executed by an executive officer of the company (Wells and Jordan).
Additionally, Appellee asserts that there is an existing assignment, which divests Appellant of her standing. Clearly, the record demonstrates that Appellant executed one formal assignment, and that was to Dr. Kole. The language in the document leaves no doubt of that. However, Appellant retained standing as to the other providers. Livingston v. State Farm Mutual Automobile Insurance Company, 774 So.2d 716 (Fla. 2nd DCA 2000) (insured’s assignment her cause of action against her insurance company for payment of personal injury protection (PIP) benefits to health care provider barred or rendered premature insured’s lawsuit against insurer for assigned claims).
As for the authorizations for direct payments on the other accounts, which Appellee claims are equitable assignments that also act to divest Appellant of standing, we find that Appellee’s arguments are without merit. To the extent that our position on this issue has not been clear, let us restate that authorizations for direct payments on HCFA forms or other similar forms do not constitute equitable assignments, whether or not they are signed, in the absence of an additional writing granting a formal assignment. Lapansee v. State Farm Mutual Automobile Insurance Company, appellate case no. 01-1609 (13th Judicial Circuit, January 18, 2002) (in the absence of a formal writing or clear intent of the parties, we determine that the direct payment and the assertion on the claim form, in the absence of an additional writing or other understanding, are not evidence of an equitable assignment); Artau v. State Farm Mutual Automobile Ins. Co., 6 Fla. L. Weekly Supp. 679a (13th Judicial Circuit, May 19, 1999) (authorization for direct payment, without more, is insufficient to create an assignment). Such forms must be signed to effect direct payment, pursuant to section 627.736(5)(a), but signing the HCFA alone does not create an assignment where an assignment is not clearly intended. Indeed, the PIP statute appears to leave no room for assignments that are anything less than assignments-in-fact. Cf. sections 627.736(5)(a) (allowing insurer to pay healthcare provider directly if insured has countersigned the invoice, bill or claim form approved by the Department of Insurance) and 627.736(5)(c) (requiring an assignment to proceed with arbitration, but does not suggest that the direct payment provisions of (5)(a) amount to an assignment). Notwithstanding the fact that arbitration has been found unconstitutional by the Florida Supreme Court, the two statutes read together do not suggest that merely counter-signing a form authorizing direct payments to the health care provider gives rise to an assignment, equitable or otherwise.
It is true, as Appellee asserts, that the remaining outstanding balances are so stale that the health care providers cannot now go after Appellant for their balances. The statute of limitations has run (that it was not raised below is irrelevant, as it is being raised for the purpose of argument, rather than as an affirmative defense). However, because the action being taken by Appellant may properly be taken, and it was timely, the statute of limitations argument is without merit. Indeed, were this court to treat the argument favorably, it would likely encourage dilatory tactics on the part of insurance companies.
In sum, we determine that Appellant has standing to bring an action for unpaid medical bills except for Dr. Kole’s, and that the indemnification letter did not amend the insurance contract. It was therefore improper for the trial court to grant summary judgment in favor of Appellee on all of the disputed accounts except those pertaining to Dr. Kole. Therefore, we must remand this cause for the trial court to determine the reasonableness of the insurance company’s reductions of payments. Because we do so, we need not address the evidentiary issue.
It is therefore ORDERED that the judgment of the trial court is REVERSED and the cause REMANDED for proceedings consistent with this opinion.
It is further ordered that the parties’ competing motions for attorney’s fees are both DENIED. (Gregory P. Holder, Presiding Judge, Little and Simms, JJ., concur.)
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