9 Fla. L. Weekly Supp. 487b
Insurance — Personal injury protection — Medical provider’s action against insurer — Provider’s motion for partial summary judgment granted with respect to insurer’s affirmative defenses that provider did not have valid assignment of benefits and that provider lacked standing because the patient had previously assigned benefits to another provider — Medical provider is not precluded from accepting an assignment of benefits and seeking payment from PIP insurer simply because patient provided a prior provider with an assignment of benefits
NORTHWEST BROWARD ORTHOPAEDICS, as assignee for Terry Divincenzo, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-23971 (50). May 1, 2002. Peter Skolnik, Judge. Counsel: Cris Boyar, for Plaintiff. Virginia G. Wolf, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court and the Court having reviewed the pleadings and being otherwise duly advised in the premises, the Court finds as follows:
The Plaintiff medical provider filed suit against the Defendant insurance company for PIP benefits. The Defendant filed an Answer and Affirmative Defenses. The Plaintiff seeks a Partial Summary Judgment on the Affirmative Defenses found in paragraph Numbers 7 and 11.
In the affirmative defense found in paragraph 7, the Defendant alleges the Plaintiff does not have a valid assignment of benefits. The Court finds the Assignment of Benefits in the Court file to be valid. Accordingly, the Plaintiff’s Motion is hereby granted as to this affirmative defense with prejudice.
With regard to the affirmative defense found in paragraph number 11, the Defendant alleges the Plaintiff lacks standing under the alleged assignment of benefits because prior to entering into the assignment of benefits with the Plaintiff, the patient entered into an assignment of benefits to another provider, and therefore, has no other benefits to assign to the Plaintiff, therefore making any assignment of benefits the patient has signed moot and ineffectual.
The Court finds this affirmative defense is completely without merit for numerous reasons. First, the Defendant has failed to provide this Court with any evidence of a prior assignment of benefits. Second, the Defendant has failed to allege or file any record evidence demonstrating the policy of insurance was exhausted before the Defendant received the medical bills submitted by the Plaintiff. Third, the Defendant’s argument is contrary to Florida law. A patient that assigns his or her benefits of insurance under a personal injury protection policy is assigning only those benefits which could be used to pay medical expenses that have been incurred by the patient and submitted to the insurance company for payment in compliance with Florida law. A patient that assigns his or her benefits to one provider is still free to treat with other medical providers and assign any remaining insurance benefits to those medical providers. The insurance company would then be required to pay those bills in the order in which they are received. See Cosme v. Fidelity National Insurance Co., 5 Fla. L. Weekly Supp. 656, 657 (Fla. 11th Cir. Court 1998); Tower Heath Center v. Lyndon Property, 7 Fla. L. Weekly Supp. 627 (Fla. Broward County Court 2000). A medical provider is not precluded from accepting an assignment of benefits and seeking payment from a PIP insurer simply because the patient provided a prior medical provider with an assignment of benefits.
IT IS ORDERED AND ADJUDGED the Plaintiff’s Motion for Partial Summary judgment as to these affirmative defenses is granted with prejudice for the reasons stated above.
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