9 Fla. L. Weekly Supp. 485a
Insurance — Personal injury protection — Assignment — Purported assignment which included provision that insured remain personally responsible for total amounts due assignees for their services and that assignees could demand payments from insured immediately upon rendering service, at their option, was not valid assignment — Any purported assignment would be ineffective and inoperative in any event in view of clear and unambiguous provision of policy prohibiting assignment without insurer’s consent — Although policy provision requiring consent of insurer to transfer an interest does not apply to assignment after loss, purported assignment in present case occurred prior to any loss being sustained
NEUROMUSCULAR MEDICAL CENTERS OF FLORIDA, P.A. as assignee of PAUL KUNKEL, Plaintiff, vs. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 01-5321SC. April 30, 2002. Karl B. Grube, Judge. Counsel: Kari A. Metzger, Tampa. Marc B. Nussbaum, Reynolds & Stowell, St. Petersburg.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND STRIKING PLAINTIFF’SCLAIM FOR ATTORNEY’S FEES AND COSTS
THIS MATTER came to be heard upon the Defendant’s Motion for Summary Judgment and Motion to Strike Plaintiff’s Claim For Attorney’s Fees and Costs. The Court considered the pleadings, affidavits, operant insurance policy provisions, as well as the argument of counsel, and thereupon found and ruled as follows:
1. The undisputed material facts contained in the pleadings, attachments and affidavits reveal the following:
A. Plaintiff’s assignee was involved in a motor vehicle accident on May 1, 2000. At that time, there was in force a policy providing personal injury protection benefits and medical payments coverage that was issued by the Defendant in favor of Plaintiff’s assignee. Section VII GENERAL CONDITIONS, paragraph 11, provides as follows:
“No change of interest in this policy is effective unless WE consent in writing by means of endorsement of this policy.”
B. Defendant did not consent to any change of interest or assignment of benefits by the Defendant to the Plaintiff.
C. On May 3, 2000, Plaintiff’s assignee executed a purported “assignment of benefits, lien, cause of action, and authorization” in favor of the Plaintiff. This document provided, in the fourth full paragraph, as follows:
“I understand that I remain personally responsible for the total amounts due ASSIGNEES for their services. I further understand and agree that this Assignment of Benefits, Liens, Cause of Action, And Authorization does not constitute any consideration for Assignees to await payment and they may demand payments from me immediately upon rendering services at their option.”
D. There is no evidence that the Plaintiff has ever demanded any payment from its assignee for services rendered or instituted any cause of action or placed any lien against its assignee for services rendered.
2. This Court finds that the purported assignment does not constitute or function as a matter of law as an assignment. A legally sufficient assignment must be supported by valid consideration. Majorana, On Behalf Of Palladino v. Metropolitan Casualty Ins. Co., 8 Fla. Law Weekly Supp. 735 (6th Jud. Cir. 2001); Fernandez v. Liberty Mutual Ins. Co., 5 Fla. Law Weekly Supp. 831 (6th Cir. 1998). The purported assignment in the present case does not function as a matter of law as an assignment because it is unsupported by consideration and it renders the purported assignee potentially liable for treatment performed by the Plaintiff. The purported assignment constitutes nothing more than a direction to pay wherein the Plaintiff has directed the Defendant to pay benefits to it. This direction to pay will not support a claim for attorney’s fees pursuant to §627.428 (Fla. Stat.) because the Plaintiff is not the named insured, an omnibus insured or the named beneficiary under the Defendant’s policy.
3. It is undisputed that the Defendant has not consented to any assignment under the provisions of its contract of insurance with the Plaintiff’s assignee. Assignments and changes of interest under the policy in effect required consent, in writing, by the Defendant. It is undisputed that no such consent was ever given, in writing, by the Defendant. This lack of consent renders any purported assignment ineffective and inoperative. The provisions of Paragraph 11 of the policy are clear and unambiguous. They prohibit assignment without the insurer’s permission. Classic Concepts, Inc. v. Poland, 570 So.2d 311, 312 (4th D.C.A. 1990); Lexington Ins. Co. v. Simkins, 704 So.2d 1384 (Fla. 1998).
4. This Court further finds that the attempted assignment of benefits by Plaintiff’s assignee to the Plaintiff occurred prior to any loss being sustained. The undisputed facts disclose that the purported assignment (Exhibit A to Plaintiff’s Complaint) was executed on May 3, 2000, two days after the motor vehicle accident and prior to commencement of any treatment for which claims were later made. Plaintiff’s assignee plainly did not incur any loss until such time as Plaintiff’s assignee was treated and a claim submitted for such treatment. This Court acknowledges that a policy provision requiring consent of the insured to transfer an interest does not apply to an assignment after loss. West Florida Grocery Co., et al., v. Teutonia Fire Ins. Co., 77 So. 209 (Fla. 1918). This rule however, does not apply in the present case as the assignment clearly occurred prior to any treatment or claim for payment of treatment.
WHEREFORE, it is
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment be and the same is herewith granted. This Order is without prejudice to the insured; Paul Kunkel, filing suit on his own behalf against the Defendant. It is further
ORDERED AND ADJUDGED that the Defendant’s Motion to Strike Plaintiff’s entitlement to fees and costs in pursuing the present case is herewith granted. It is further
ORDERED AND ADJUDGED that judgment shall be entered in favor of the Defendant.
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