6 Fla. L. Weekly Supp. 574a
Insurance — Personal injury protection — Insurer did not waive its right to contest medical provider’s standing by entering into stipulation effecting a partial settlement which limited remaining issues to services rendered after IME cutoff and a nerve conduction study — Motion to dismiss on ground that no assignment was attached to the complaint is denied — For purposes of motion to dismiss court is obliged to accept allegations that insured executed an assignment of benefits in favor of plaintiff where those allegations are not negated by the document filed with the court
DR. M.J. BARTELL, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court of 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. MC-96-12828-RL. June 8, 1999. Kirsta Marx, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISS
The Defendant’s Motion to Dismiss was heard before the Court on May 25, 1999.
The Plaintiff asserted that the motion was disposed of by stipulation at a deposition. The Motion to Dismiss is dated August 23, 1996. The deposition of Mark Chang dated November 18, 1996 included a stipulation effecting partial settlement as set forth at pages 8 and 9 thereof. The Plaintiff asserts that the partial settlement and the language stipulating to limit the remaining issues to services rendered after an IME cutoff and to the nerve conduction study meant, inferentially, that the Defendant had waived entitlement to contest the Plaintiff’s standing. The Court does not agree that this stipulation operated as a waiver despite the fact that no hearing thereon was set by the Defendant for the almost 3 years that followed.
The Defendant moved to dismiss asserting, among other things, that no assignment was attached to the Complaint. The relevant facts are that the Plaintiff filed a PIP complaint alleging that the Plaintiff had accepted an assignment from the insured, a copy of which was filed in the Court file in September 1996. The document filed says: “I HEREBY ASSIGN PAYMENT directly to this office for professional services and I shall be personally responsible for any unpaid balance to the doctor.” The document bears the signature of the insured, Darlene Waters.
For purposes of a motion to dismiss all well pleaded allegations must be taken as true. Therefore, the Court is obliged to accept the allegations at paragraph 9 of the Complaint if the same is not negated by the document so filed. Paragraph 9 alleges: “On or about December 21st, 1994, Insured executed an assignment of benefits in favor of the Plaintiff.”
The Defendant asserts that the language of the document fails to set over ownership of anything to the Plaintiff and fails to signify acceptance and cites Wallace v. Omni Insurance Co., 5 FLW Supp. 284 (6th Fla. Jud. Cir. 1998) as authority for the Court to construe the instrument. Wallace held that “the interpretation of an unambiguous contract is a matter of law”. Id. Thus, the Court must first consider if any ambiguity is present by the inclusion of the word “assign” in the document. The term “assign” is a term of conveyance and is synonymous with “transfer”. Thus, the question is presented: Did Darlene Waters intend to transfer more than a right to receive payment to the Plaintiff. Did the word “assign” include the right to enforce nonpayment?
An insurance benefit is a chose in action that is clearly assignable. What are the minimum requirements to effect assignment? The Plaintiff cites Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94, 97 (Fla. 1965): “Formal requisites of such an assignment are not prescribed by statute and it may be accomplished by parol, by instrument in writing, or other mode, such as delivery of evidences of the debt, as may demonstrate an intent to transfer and acceptance of it.”
The concept of conveyance and acceptance are concepts which must be addressed separately. It cannot be reasonably asserted that the use of the term “assign” precludes “transfer” or “convey”, hence there is at the very least ambiguity. Thus, the Court cannot without more construe the instrument as precluding transfer or conveyance of the chose in action which was the right to receive the payment. But is this ambiguity irrelevant without words of acceptance as argued by the Defendant? Boulevard provides an answer at 98 by noting that with respect to an account receivable notice to the debtor is a manifestation of delivery that fixes accountability of the debtor to the assignee instead of the assignor. The Plaintiff alleges at paragraph 10: “Plaintiff properly submitted the appropriate health insurance claim form and has performed all conditions precedent to entitle Plaintiff to recover benefits for medical treatment.” Thus, the Plaintiff has alleged putting the Defendant on notice. The Court notes that there are no words of reservation in the document presented nor are there any terms expressly negating assignment as appeared in Wallace. Hence, at the very least the Court finds ambiguity which must be resolved in favor of retaining the Plaintiff’s right to present the assertion to the jury.
The Court has not addressed the remainder of the Defendant’s bases asserted in the Motion to Dismiss. As to the form of the alleged assignment document, the motion is DENIED.
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