vs.                                                                                                        Appeal No. 99-4424-CI-88A

d/b/a CNA



Opinion filed ________________________

Appeals from Final Judgment

County Court, Civil Division, Pinellas County

The Honorable Karl B. Grube

William K. Saron, Esquire

1400 66th Street North, Suite 104

St. Petersburg, FL  33710

Attorney for Appellant

Charles W. Hall, Esquire

501 First Avenue North, Suite 900

St. Petersburg, FL  33701

Attorney for Appellee


            THIS CAUSE came before the Court on appeal, filed by Sandy Romano (Appellant), from an Order Granting Motion For Summary Judgment in favor of Continental Insurance Company (Appellee), entered June 17, 1999, by the Pinellas County Court, Civil Division.  Upon review of the record and the briefs and being otherwise fully advised in the premises, the Order entered by the lower court is affirmed.

            These proceedings began with a cause of action brought by the Appellant to recover personal injury protection (PIP) insurance benefits against the Appellee.  In answering the complaint, the Appellee asserted that the Appellant’s claim was precluded because she had assigned her benefits to her treating chiropractor, Dr. Gar, and therefore lacked standing to bring the suit.  The Appellant did not serve a reply or move to strike this affirmative defense.

            The lower court held a hearing on Appellee’s summary judgment motion on May 17, 1999, and, after hearing oral arguments, informed both parties that the matter would be taken under advisement.  The lower court then instructed the Appellee to submit to the court and opposing counsel a list of facts that would show an equitable assignment had been made from the Appellant to Dr. Gar, and instructed the Appellant to “respond in whatever form he wishes.”

            Accordingly, the Appellee submitted a list of twenty-five (25) items of “facts showing assignment.”  Although the facts showing an assignment were very specific, the Appellant did not deny any of the specific facts listed by the Appellee, but instead made a generally statement that Dr. Gars’ affidavit did not show any intent to create an assignment.  Thereafter, the lower court found that the Appellant lacked standing to bring her suit and granted Appellee’s summary judgment motion.

            It is the role of the appellate court, in reviewing a summary judgment, to view the facts in the light most favorable to the party against whom judgment is granted.   See O.E. Smith’s Sons, Inc., v. George, 545 So.2d 298, 299-300 (Fla. 1st DCA 1989).  The appellee, as the movant, must demonstrate conclusively that the appellants could not prevail.  See Tamm v. Bradley, 696 So.2d 816 (Fla. 2d DCA 1997). Although a party moving for summary judgment has a high burden, the Appellant, CNA Insurance Company, has met that burden in this case.

            In answering the Appellant’s complaint, the Appellee set forth an affirmative response that the Appellant lacked standing to bring her suit and then set forth 25 specific facts showing an assignment had been made.  These facts included that, over a 3-month period, Gars Chiropractic submitted 24 bills to CNA Insurance Company which were filed on standard HCFA forms reflecting that an assignment had been accepted by Gars Chiropractic.  In response, CNA made direct payment for services rendered to Gars Chiropractic.  At no time did Gars Chiropractic bill the Appellant for her treatment and only upon a reduction in payment by CNA of bills submitted by Gars Chiropractic, did Dr. Gar give the Appellant a revocation of assignment form and assist the Appellant in filling the form out.  These undisputed material facts, among numerous others found in the record, conclusively demonstrate that Dr. Gar had accepted an assignment.   Therefore, even in viewing the facts most favorable to the plaintiff below, the lower court did not err in granting summary judgment in favor of the Appellee.

            The Second District Court of Appeal recently considered the issue of the right of the insured to bring a lawsuit for claims that have been assigned to a health care provider.  See Livingston v. State Farm Mutual Automobile Insurance Company, 25 Fla. L. Weekly D533 (Fla. 2d DCA March 3, 2000).  In affirming the county court’s summary judgment, the Second District held that once an insured has assigned her cause of action against her insurance company for payment of PIP benefits to the health care provider, a lawsuit by the insured against the insurer for assigned claims was barred or rendered premature.  The Court reasoned that if the insured does not retain any risk of loss or any contingent liability that warrants an immediate, separate lawsuit against the insurance company, the insured does not suffer any damage and has no practical need to file the lawsuit.  See id. 

            Likewise, the Appellant in this case suffered no damage and had no practical need to file her lawsuit.  The record shows that the Appellant did not retain any risk of loss or liability and that Gars Chiropractic did not expect payment from the Appellant.  As the assignor, Gars Chiropractic was able to arbitrate any bill disputes with the insurance company.  See Fla. Stat. § 627.736(5)(2000)(Note that the mandatory arbitration portion of this statute has been ruled unconstitutional by the Florida Supreme Court so that medical providers, such as Gars Chiropractic, now may also litigate fee disputes.  See Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., etc., 753 So. 2d 55 (Fla. 2000).

            On appeal, the Appellant also asserts that Florida Statutes §627.736(5) may not apply to the Appellant citing a prior ruling by this Court in Bethune v. Liberty Mutual Group, 98-4288-CI-88A (6th Judicial Cir. January 7, 1999).  However, Bethune is not controlling of the present case, as the issue in Bethune was whether the insurer’s cut-off of benefits after an independent medical examination should be decided by the Court or subject to arbitration.  Upon a limited record, the Court ruled that where the issue in one of coverage and not liability, then the mandatory arbitration provision of §627.736(5) is not applicable and an insurer can bring suit in Court to determine coverage of future benefits.  The issue presented by the Appellant in this case was whether she could sue her insurance company for past bills, which the lower court correctly determined she could not. (The outcome of Bethune would remain the same using the analysis articulated the Second District in Livingston; that is, if the insured suffers damage then she or he may sue the insurance company even after an assignment).

            A further issue the Appellant raises on appeal before this Court, is whether the judge below should have recused himself after referring Appellant’s counsel to the Florida Bar for possible rule violations for engaging in a “business relationship” with Gars Chiropractic.  Canon 3E(1) of the Code of Judicial Conduct states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…”.  The commentary on Canon 3E(1) states that “a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”

            Although it is unclear why the lower court did not copy the file or Appellant’s counsel of his letter to the Florida Bar, Appellant’s counsel nevertheless could have timely filed a motion to disqualify the trial judge upon learning of the letter if he feared prejudice or bias.   See Fla. R. Jud. Admin., Rule 2.160(e)(2000)(stating that a motion to disqualify shall be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion).  Further, the record reflects that the lower court heard argument by counsel for the Appellee on May 17, 1999, over two weeks before the letter was sent, regarding this business relationship, but Appellant’s counsel did not object or otherwise respond.  As no motion for disqualification or recusal was filed, and therefore no order on the matter entered, the Court finds this issue on appeal is without merit.           

            Therefore, it is,

            ORDERED AND ADJUDGED that the Order Granting Motion For Summary Judgment, is hereby affirmed.  The parties request for oral argument is denied.  It is further

            ORDERED AND ADJUDGED that the Appellee is entitled to reasonable attorney’s fees expended on this appeal.  The trial court shall determine the amount of these fees.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 25th day of August 2000.



Circuit Judge, Appellate Division


Copies Furnished To:

The Honorable Karl B. Grube

William K. Saron, Esquire

1400 66th Street North, Suite 104

St. Petersburg, FL  33710

Attorney for Appellant

Charles W. Hall, Esquire

Post Office Box 210

St. Petersburg, FL  33731

Attorney for Appellee

Staff Attorney, Appellate Division