9 Fla. L. Weekly Supp. 328a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Standing — Assignment — Where first paragraph of document provides that insured is merely directing payment from insurer to medical provider, and last paragraph indicates that medical provider is accepting an assignment but is unsigned by provider, document is a direction to pay, not an assignment
MDR CHIROPRACTIC, (Patient: Melissa Anderson), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. SS-01-21398-RD. March 14, 2002. Chalres E. Burton, Judge. Counsel: Larry Skurka, Delray Beach, Plaintiff. Frank S. Goldstein, Hengber & Goldstein, Ft. Lauderdale.
ORDER ON DEFENDANT’S MOTION TO DISMISS
This case came before the Court an March 11, 2002 upon the Defendant’s Motion to Dismiss. 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. 627.736, alleging that the Plaintiff furnished medical treatment and expenses for injuries received by the patient. In support, the Plaintiff attached a document titled “Assignment of Benefits.” 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, first paragraph of the document provides that the patient is merely directing payment from the insurance company to Dr. Di Roma. While the last paragraph indicates that the doctor is accepting the assignment of insurance benefits, this was never signed by the doctor. 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 unambiguous and finds that it is a direction to pay. Here, the plain language of the document is not indicative of the parties intent to create an assignment. Physician’s Injury Center v. Progressive Express Ins. Co., 9 Fla.L.Weekly Supp. 169 (Fla. 13th Cir.Ct.Appellate, January 17, 2002).
Accordingly, it is
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is GRANTED.
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