9 Fla. L. Weekly Supp. 92b
Insurance — Dispute between medical provider and insurer — Standing — Assignment — Error to enter summary judgment in favor of insurer where both language of alleged assignment and insured’s deposition testimony are ambiguous, such that a genuine issue of material fact remains as to what insured intended to transfer — Medical provider’s motion for attorney’s fees pursuant to section 627.428 is denied since provider has not yet been determined to be insured’s assignee
Lower court order at 6 Fla. L. Weekly Supp. 794a
DR. M.J. BARTELL, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division. Case No. AP 99-10136 AY. Opinion filed December 13, 2001. Appeal from the County Court in and for Palm Beach County, Krista Marx, J. Counsel: Charles J. Kane, on behalf of Appellant. Jacqueline G. Emmanuel, on behalf of Appellee.
(PER CURIAM.) Dr. M. J. Bartell appeals a trial court order granting summary judgment in favor of Allstate Insurance Company. Bartell, who provided chiropractic services to the insured, sued Allstate in order to collect insurance benefits. Bartell brought this claim based on a form signed by the insured which read, “I hereby assign payment directly to this office for professional services rendered and shall be responsible for any unpaid balance to the doctor.” The issue on appeal is whether this language constitutes a complete assignment of benefits, sufficient to give Bartell standing to sue for benefits in the place of the insured.
An assignment is defined as “a transfer or setting over of property or of some right or interest therein, from one person to another.” See USAA Casualty Ins. Co. v. Romm, 712 So. 2d 405, 406 (Fla. 4th DCA 1998). An unqualified assignment transfers to the assignee all the interest of the assignor in the right or property, including the right to make any claim thereon. See Livingston v. State Farm Ins. Co., 774 So. 2d 716 (Fla. 2d DCA 2000). To determine whether the insured in the instant case executed a true assignment, the trial court first looked to the form’s language, which was found to be ambiguous. The trial court considered next the insured’s deposition testimony, and found that the insured intended only to direct payment. See Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So. 2d 94 (Fla. 1965) (lower court may consider intent of assignor when ruling on a motion for summary judgment); see also, U.S. v. Golden Fifty Pharmaceutical Co., 421 F. Supp. 1199, 1202 (N.D. Ill. 1976) (summary judgment may be appropriate if intent evidence supporting a given interpretation is clear).
A review of this testimony reveals, however, that the insured’s testimony is also ambiguous and susceptible to conflicting inferences or conclusions. As such, a genuine issue of material fact remains as to what she intended to transfer, rendering the summary judgment improper. See Coffin v. Coffin, 368 So. 2d 105, 107 (Fla. 4th DCA 1979).
Based upon the foregoing, the trial court’s Order Granting Summary Judgment in favor of Allstate is hereby REVERSED, and the cause is REMANDED for further proceedings consistent with this opinion. Appellant’s Motion for Attorney’s Fees under §§ 57.105, 627.428, and Fla. R. App. P. 9.400 are DENIED. Attorneys fees under § 627.428, Fla. Stat. are available only to the insured or her assigns, a finding which has not yet been made with regard to the Appellant. See USAA Casualty, 712 So. 2d at 406 (noting that attorney fee statutes are to be strictly construed). (MAASS, BLANC & BRUNSON, JJ., concur.)
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