21 Fla. L. Weekly Supp. 354a
Online Reference: FLWSUPP 2104PENDInsurance — Personal injury protection — Standing — Assignment — Where assignment was made to individual physician, not to corporate plaintiff, plaintiff lacks standing to bring suit
TURNER ORTHOPEDICS, P.A., a/a/o LAURA PENDLETON, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Manatee County, Civil Division. Case No. 2012SC3062, Division 3. May 14, 2013. Mark D. Singer, Judge. Counsel: Adam Saben, Miami, for Plaintiff. John Henley, Oxendine & Oxendine, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT STATE FARMMUTUAL AUTOMOBILE INSURANCE COMPANY’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before this Honorable Court on Defendant’s Motion for Summary Judgment heard on March 27, 2013, and the Court, after having reviewed the file, heard arguments of counsel, and having been fully advised in the premises, finds as follows:BACKGROUND
This is an action for personal injury protection (“PIP”) benefits arising out of a motor vehicle accident which occurred on February 10, 2010. The insured, Laura Pendleton, maintained a policy of insurance with the Defendant, State Farm Mutual Automobile Insurance Company, that provided PIP coverage. The named Plaintiff, Turner Orthopedics, P.A., filed its Complaint alleging breach of contract and entitlement to PIP benefits under the policy issued to the insured, Ms. Pendleton. Attached to the Plaintiff’s Complaint is a document titled “Assignment of Rights, Benefits and Causes of Action.” This document purports to assign “all rights, benefits, and causes of action, available to me under any policy of insurance, arising from a motor vehicle accident occurring on 2-10-10 (subject accident), to Fred Turner, M.D. (provider).” This same document was attached to the March 30, 2012, correspondence sent by the Plaintiff to the Defendant which purported to be a demand letter pursuant to Florida Statute Section 627.736(10). As such, Defendant argues that Turner Orthopedic, P.A. does not have standing to pursue this cause of action. This Court agrees.
ANALYSIS
Defendant contends that, since the assignment lists Fred Turner, M.D. as the assignee and not Turner Orthopedics, P.A., that only Fred Turner can bring suit under the assignment. Plaintiff raises three main arguments in response to Defendant’s contention: first, that the Plaintiff is the real party in interest and should therefore be considered the appropriate entity to bring suit; second, that Defendant lacks standing to challenge the Plaintiff’s assignment; and third, that Defendant is in no danger of having multiple claims brought against it by both the Plaintiff and Dr. Turner.
Florida Statute Section 627.736(10) requires that, along with a valid written notice of intent to initiate litigation, the Plaintiff must include a copy of the assignment giving rights to the claimant if the claimant is not the insured. Without a valid assignment, a claimant lacks standing, and the Court lacks subject matter jurisdiction. See Partners in Health Palm Beach, Inc., A Florida Corp. (a/a/o Roosevelt Labastille) v. Progressive American Ins. Co., 14 Fla. L. Weekly Supp. 984a (17th Cir Broward Cty. Ct. 2007) (citing Hartford Ins. Co. v. St. Mary’s Hosp., Inc., 771 So.2d 1210 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a]. Thus, it is critically important that when there is an assignment that it be clear on its face to whom the assignment is made.
This Court agrees with Judge Miller in the Partners case; that it is critical that the proper party plaintiff be involved in the lawsuit. One reason is because, for purposes of res judicata, the Court has to look to whether there is a unity of the parties. If in one action Dr. Turner sues State Farm and in a subsequent action Turner Orthopedics, P.A. sues State Farm, res judicata would not apply.
Despite the representation of Turner Orthopedics, P.A. that Dr. Turner is still the real party in interest in this action, it remains that Turner Orthopedics, P.A. prevailing in this action would not impede Dr. Turner from subsequently filing an action seeking the same claim against State Farm. In that situation, any attempt by State Farm to raise res judicata as a defense would fail as there would be no unity of the parties. According to Florida law, only one party “ ‘owns’ the cause of action against the insurer at any one time . . . and the one that owns the claim must bring the action if an action is to be brought.” Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So.2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a]. In this case, that party is Dr. Turner.
Plaintiff further argues that “if the Court found that [Dr. Turner] was not the real party in interest, [he] would have to find every patient where the Plaintiff’s bill was not properly paid and ask said patient/claimant to file a lawsuit, seek counsel and properly and actively and sincerely litigate a lawsuit for unpaid PIP benefits on behalf of the Plaintiff to get its bills paid.” This is not the case. A medical provider must obtain a valid assignment in order to file suit against an insurer. If the benefits and rights under the policy are not assigned from the insured to the provider, or, if the assignment is found to be invalid, the provider still maintains its right to pursue payment from the insured patient directly.
Finally, Plaintiff argues that the insurer lacks standing to challenge the Plaintiff’s assignment. In support of this contention, the Plaintiff cites to Judge Davis’ concurring opinion in Progressive Express Ins. Co. v. McGrath Community Chiropractic, f/k/a Naples Community Chiropractic, 913 So.2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b]. However, the concurring opinion simply states that a third party insurer cannot challenge an assignment for lack of consideration. McGrath at 1289. Defendant has made no attempts at challenging any consideration between Ms. Pendleton and Dr. Turner. Additionally, several other courts have allowed the insurer to successfully challenge standing based on deficient assignments. See Oglesby, McGrath, St. Mary’s, Richard W. Merritt, D.C., P.A. a/a/o Arthur Lee Evans v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 46a (10th Cir. Polk Cty. Ct. 2009). A Defendant insurer is entitled to challenge whether the individual/entity bringing suit against it is actually and legally able to do so.
Accordingly, it is ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED and Plaintiff’s Cross-Motion for Summary Judgment on Standing is DENIED. The Plaintiff, Turner Orthopedics, P.A. shall take nothing in this action and Plaintiff shall go hence without day. The Court reserves jurisdiction on the issue of attorneys’ fees and costs.
* * *