9 Fla. L. Weekly Supp. 399b
Insurance — Personal injury protection — Dispute between medical provider and insurer — Standing — Assignment not invalidated by failure of insured to obtain insurer’s prior written consent — Summary judgment based on argument that written document is insufficient as an assignment is denied where there is dispute as to insured’s intent to assign rights and benefits to medical provider — Assignment may be established by parol evidence or additional testimony of the insured — Summary judgment denied as to three arguments which concern factual disputes as to codes and billing issues
RICHARD R. SHAKER, D.C., P.A., (As Assignee of Robert Cook), Plaintiff, vs. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 2001-15888 SC, Division H. April 8, 2002. Cheryl K. Thomas, Judge. Counsel: Timothy A. Patrick, Timothy A. Patrick, P.A., Tampa, for Plaintiff. Andrew Reeder and Gale Young, Reynolds & Stowell, for Defendant.
[Affirmed, 10 Fla. L. Weekly Sup. 478a, clarified at 10 Fla. L. Weekly Supp. 679a.]
ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on Defendant’s Motion for Summary Judgment, on February 27, 2002, both parties appearing through counsel and the Court having been advised by counsel, it is hereby:
ORDERED and ADJUDGED that:
1. The court denies summary judgment based upon Defendant’s argument that the insured failed to received written consent from Defendant prior to executing the purported assignment and therefore, the purported assignment is invalid. The court finds that written consent may be required prior to the risk of the policy itself being assigned, which is much different than benefits of the policy being assigned. The risk associated with the benefits being assigned does not change the risk of the policy itself; The benefits have only been transferred.
2. The court denies summary judgment based upon Defendant’s argument that the written document Plaintiff attempts to rely on fails to qualify as a legally sufficient assignment and therefore, Plaintiff has no standing. The court finds that there is a material dispute as to material facts as to the intent of the insured to assign his rights and benefits to the medical provider. The court cites Ogelsby v. State Farm Mut. Auto. Ins. Co., 26 Fla. L. Weekly D702 (Fla. 5th DCA 2001). The court additional finds that an assignment of benefits may be established by parol evidence or by additional testimony of the insured.
3. The court denies summary judgment as to Defendant’s remaining three arguments which concern factual disputes as to the CPT codes and billing issues. The court finds that there is a question of fact as to whether the Affidavit of the claim adjuster filed by Defendant is supported by personal knowledge and is thus, inadmissible as record evidence. An affidavit is not subject to cross-examination.
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is HEREBY DENIED.
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