9 Fla. L. Weekly Supp. 777a
Insurance — Personal injury protection — Standing — Assignment — Document containing titles of “Assignment” and “Assignment of Medical Benefits” and text describing only direction to pay is ambiguous — Where insurer’s personnel treated insurer-created document as an assignment and made payment to medical provider in accordance with policy to only make payments directly to medical provider if provider has accepted an assignment of benefits, it would be inequitable to allow insurer to deny that document is an assignment — Summary judgment entered in favor of medical provider on standing issue
KIRKMAN CHIROPRACTIC, P.A. as assignee of SUSAN JEWELL, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-01-4153, Div. 71. September 13, 2002. C. Jeffery Arnold, Judge. Counsel: Jerona Maiyo, Adams, Blackwell & Diaco, P.A., Orlando. Terry A. Slusher, Seifert, Miller, Slusher & Landerman, LLC, Orlando.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT REGARDING STANDING
This cause, having come before the Court on Plaintiff’s Motion for Summary Judgment regarding standing, and this Court, having reviewed the depositions, pleadings, documentary evidence and other items properly before the Court, hearing argument of Counsel for the parties and being otherwise fully advised in the premises, the Court finds as follows:
The undisputed facts in this case show:
1. That on September 16, 1998, Cynthia Grayson, a Claims Adjuster for Progressive, sent form letters used by the Defendant at that time to both of the persons filing PIP claims under the Progressive insurance policy at issue in this case. According to deposition testimony this “form letter” was supposed to be sent to all PIP claimants as part of Progressive’s authorized claims handling procedure. This “form letter” advised the claimant in a separate paragraph that, “if your treating physician does not accept an Assignment of Benefits, we will issue payment drafts made payable to you and your physician and mail them directly to you or your attorney, whichever is applicable.”
2. At the same time the September 16, 1998 form letters were sent, another form was also sent to the claimants pursuant to Progressive’s authorized claims handling procedure. This form has the title “ASSIGNMENT” with spaces underneath for providing policy and claimant information. In the instant case, Cynthia Grayson filled in all of the spaces with the requested claim information. Underneath the “fill in the blank” area is another portion of the form titled “ASSIGNMENT OF MEDICAL BENEFITS” which then states, “I, ___________, hereby authorize payment of PIP medical benefits directly to all treating facilities with reference tot he {sic} above captioned accident.” The document, presented to this Court and attached to this Order as Appendix “A,” is signed by the claimant, Susan Jewell. Progressive acknowledges it created and distributed this form to its insureds as part of its authorized claims handling procedures at the time of this claim.
3. The HCFA 1500 form Kirkman Chiropractic was required to use in billing for the medical services provided to Susan Jewell is marked to show that Kirkman Chiropractic accepted an assignment of benefits from Susan Jewell. All Progressive checks payable for those medical services were made payable to “Kirkman Chiropractic office only”. Checks for payment of lost wages were made payable to “SUSAN JEWELL (ONLY)”. No Progressive checks were ever made payable to both Kirkman Chiropractic and Susan Jewell and mailed to Susan Jewell or her attorney. Progressive never advised Susan Jewell or Kirkman Chiropractic that any additional documentation was needed to create an assignment of Susan Jewell’s medical benefits under her PIP policy to Kirkman Chiropractic.
4. Plaintiff has requested and this Court has GRANTED Plaintiff’s Request for Judicial Notice regarding the Deposition Transcript of Cynthia Grayson taken on July 30, 2002 and filed in the case of Kirkman Chiropractic, P.A. as assignee of Eldina Myrtil, Plaintiff vs. Progressive Express Insurance Company, Defendant, Case No: SCO-01-9117, currently pending in the County Court of Orange County, Florida. During this deposition, Cynthia Grayson, Corporate Representative of Progressive Express Insurance Company, identified the “ASSIGNMENT” form document identical to that document at issue in the instant case. Ms. Grayson also testified that the adjuster for Progressive who obtained Eldina Myrtil’s signature on the “ASSIGNMENT” and “ASSIGNMENT OF MEDICAL BENEFITS” form referred to that form as an “A.O.B.” in the file notes and stated those letters were a “commonly known acronym with adjusters … generally it means an assignment of benefits.”
RULING
The undisputed facts as stated above demonstrates that, while the body of the document in question does not use the term “assignment,” it contains the terms “ASSIGNMENT” and “ASSIGNMENT OF MEDICAL BENEFITS” as title headings of the two sections of the document. Further, these titles are completely capitalized and are also the largest print on the document. This document was drafted by the Defendant and was intended for distribution to all of its insureds who were filing PIP claims at the time this claim arose.
If the Court were to consider only the titles used in this document, it would be an assignment of Susan Jewell’s medical benefits as the titles denote. If the Court were to consider only the remainder of the document it would be considered a direction to pay, not an assignment of medical benefits. However, under well-defined rules of construction, the Court must consider the entirety of the document in its determination as to the meaning and effect of the document at issue. In this case, the titles contained in the document and the body of the document clearly denote different legal meanings and result in the creation of an internal conflict as to each other. This resulting ambiguity must therefore be resolved using well-established rules of construction.
First, “[i]t is a fundamental principle of contract interpretation that any ambiguities in an insurance policy must be strictly construed against the insurer and in favor of the insured.” Triano v. State Farm Mutual Automobile Insurance Company, 565 So. 2d 748, (Fla. 3rd DCA 1990). While the document in question is not an insurance policy, it was created by the Defendant, an insurer, and intended for distribution to claimants in all PIP claims at the time of this claim. Thus, based upon the intended use of this document, there is no reason to differentiate in the rules of construction in this case between this document and an ambiguous insurance policy. Clearly, the Defendant could have utilized any language it chose in this document and by its selection of the language used created any ambiguity that exists. “This rule is especially true when the drafter stands in a position of trust, or greater professional or business knowledge ….” Planck v. Traders Diversified, Inc., 387 So.2d 440 (Fla. 4th DCA 1980). It is well-established in Florida that an insurer, such as Progressive, stands in a position of trust with regard to its dealings with insureds who are filing claims for damages and who rely upon representations made in communications with their insurers. Certainly Progressive must be considered to have greater professional or business knowledge with regard to the legal impact of claim forms and other forms provided to its insureds during the claims process.
“Language used in business documents such as this one should be interpreted as reasonable persons, knowledgeable about the business or industry, would likely interpret them — not some strained interpretation put forth by the drafter.” Hussmann Corporation v. UPS Truck Leasing, Inc., 549 So.2d 215 (Fla. 5th DCA 1989) (emphasis in original). The term “assignment” is a well defined term to the extent that, when dealing with insurance benefits, it should be considered a term of art. See State Farm Fire and Casualty Company, 556 So.2d 811 (Fla. 5th DCA 1990) (defining the term “assignment” eight years prior to the use of the document in question). An insurer such as Progressive has to be on notice of the legally accepted meaning of the term it chose to use in documents intended to be widely distributed to its insureds in accordance with its standard claims handling procedure.
Discovery regarding Progressive’s internal documents show the Defendant’s own adjusters referred to the document in question as an “A.O.B.” which was acknowledged to be a commonly known acronym for “assignment of benefits” among adjusters. Deposition of Cynthia Grayson p. 76, Kirkman Chiropractic, P.A., as assignee of Eldina Myrtil, Plaintiff vs. Progressive Express Insurance Company, Defendant, Case No: SCO-01-9117, currently pending in the County Court of Orange County, Florida. The discovery also established that Progressive, as part of its claims handling procedures, routinely advised its insureds that, “[i]f your treating physician does not accept an Assignment of Benefits, we will issue payment drafts made payable to you and your physician and mail them directly to you or your attorney, whichever is applicable.” Finally, discovery also established that after Kirkman Chiropractic submitted bills on the required HCFA 1500 forms for payment which stated it had accepted an assignment of benefits from Susan Jewell, Progressive made all payments for medical services without including Susan Jewell’s name on the payment draft and mailed those checks directly to the provider’s offices, not to Susan Jewell or her attorney. Nor did Progressive ever advise that the documents it provided were insufficient to create the necessary assignment that permitted it to pay Kirkman Chiropractic directly. This Court is also cognizant of the legal controversy that surrounded the issue of provider assignments and the requirement for arbitration in such cases contained in the PIP statute at the time this form was being used by Progressive and of the Florida Supreme Court decision declaring that mandatory arbitration provision unconstitutional. See Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., 753 So.2d 55 (Fla. 2000).
Thus, the discovery in this case and the course of business between the parties demonstrates that Progressive personnel referred to such documents as assignment of benefits, treated the document signed by Susan Jewell as an assignment of medical benefits and made payments to Kirkman Chiropractic in accordance with its stated business policy of paying benefits directly to medical providers only if they have accepted an assignment of benefits. Based upon this course of doing business, it would be inequitable to permit Progressive to deny the document at issue is not an assignment of Susan Jewell’s medical benefits. Under the undisputed facts as established in this case, whether by construing the ambiguity in the Progressive document against Progressive or by estoppel, the Court finds the document at issue is an assignment from Susan Jewell to her medical providers, including Kirkman Chiropractic. It is therefore,
ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment on the issue of standing is GRANTED.
__________________Appendix A
ASSIGNMENT
RE: POLICY NUMBER: 20173773-1
POLICY HOLDER: Bruce Gentilella
PATIENT NAME: Susan Jewell
DATE OF LOSS: 9-12-98
CLAIM NUMBER: 981974197 CAG
ASSIGNMENT OF MEDICAL BENEFITS
I, _____________, hereby authorize payment of PIP medical benefits directly to all treating facilities with reference to the above-captioned accident.
DATE: ______, 19___ SIGNATURE: S/Susan JewellPROGRESSIVE INSURANCE COMPANIESPOST OFFICE BOX 149546ORLANDO, FL 32814-9546(800) 288-1041 OR (407) 896-4041
I have received a copy of the Florida PIP Rights and Benefits under the Florida Motor Vehicle “No Fault” Law.
S/Susan Jewell 9/14/98
Signature Date
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