9 Fla. L. Weekly Supp. 748a
Insurance — Personal injury protection — Standing — Assignment — Absence of formal assignment — Equitable assignment — Provider does not have standing to sue under theory of equitable assignment based solely on HCFA forms allowing direct payment to health care provider by insurer
JOSEPH CICCARELLO, D.C., P.A., (as assignee of Joe Moore), Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 02-617, Division X. L.C. Case No. 98-3921-SC. July 17, 2002. Order Denying Rehearing. August 28, 2002. James D. Arnold, Judge. Review of a final order of the County Ct., Hillsborough County. Counsel: William C. Rocker, Timothy A. Patrick, P.A., Tampa, for Appellant. Karen A. Barnett and Deborah L. Appel, Tampa, for Appellee.
OPINION
In the absence of evidence of a formal assignment, and on the authority of this Court’s previous opinions in Ward v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly Supp. 365a (Fla. 13th Cir. April 1, 2002); Wells v. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 350 (Fla. 13th Jud. Cir., March 8, 2001), cert. denied, 798 So.2d 739 (Fla. 2d DCA 2001); and Vicks v. State Farm Mutual Automobile Insurance Company, appeal no. 01-8990 (Fla. 13th Jud. Cir. May 29, 2002), we determine that Appellant has no standing to sue under the theory of equitable assignment based solely on Health Care Finance Administration forms allowing direct payment to the healthcare provider by the insurer.
We note that counsel for Appellant, William Rocker, failed to advise this Court of authority directly contradictory to his position, in violation of R. Regulating Fla. Bar 4-3.3(a)(3). Indeed, even once Appellee revealed this lapse in its answer brief, Mr. Rocker offered no explanation therefor in the reply brief. This is of particular concern to this Court in light of the fact that Mr. Rocker was counsel of record in the Ward case cited above, in which he not only took a position directly contrary to the one adopted in the present case, but also cited our decision in Wells, cited above, in support of the position taken in Ward. Both cases are clear, binding precedent in this jurisdiction, and Mr. Rocker’s briefs in this case demonstrate a serious lack of candor toward this tribunal.
It is therefore
ORDERED that the decision of the trial court is AFFIRMED. (Judge Barton concurring, with opinion, with which Simms, J., concurs.)
__________________
(BARTON, Judge, concurring, with opinion.) I concur with the majority’s decision. In light of the apparent violation of the Rules Regulating the Florida Bar 4-3.3(a)(3), a copy of the majority opinion is being sent to the Florida Bar. (Simms, J., concurring.)
__________________ORDER ON APPELLATE ATTORNEY’S FEES
Appellant’s Amended Motion for Attorney’s Fees is DENIED.
__________________ORDER DENYING REHEARING
THIS CAUSE is before the Court on Appellant’s timely Motion for Rehearing.
It is hereby
ORDERED that the Motion for Rehearing is DENIED. (Barton and Simms, JJ., concur.)
* * *
