v.                                                                                             Appeal No. 98-5353-CI-88B




Opinion Filed 4-3-2001.

Appeal from a decision of the Pinellas County Court

County Judge Stephen O. Rushing

Arthur Liebling, Esq.
Attorney for the Appellant

Jeffrey M. Katz, Esq.
Attorney for the Appellee


            THIS MATTER is before the Court on Christina Schroeder's appeal from the trial court’s Final Summary Judgment, Amended Order on Plaintiff’s Motion for Fees and Costs pursuant to §57.105 Fla. Stat. and Motion to Strike or Deny Defendant’s Motion for Entry of Final Order, Defendant’s Order on Motion to Tax Fees and Costs, and Amended Final Judgment for Defendant. The Appellee is State Farm Mutual Automobile Insurance Company (State Farm).

In this case, Ms. Schroeder was the insured on a personal injury protection (PIP) policy. State Farm was the insurer. Ms. Schroeder was in a covered motor vehicle accident and sought treatment from Dr. Charles P. Fleming, a chiropractor, and Dr. David Walls, a medical doctor. State Farm paid these bills.

After making such payments for a period of time, State Farm required an IME. That was done by Dr. E. Aronoff, a chiropractor. He concluded that Ms. Schroeder needed a procedure to resolve a continuing condition, but when that was done she should be at MMI (maximum medical improvement) and not require further treatment. A few months later Dr. Howard A. Hockman, another chiropractor, did a second IME and concluded that Ms. Schroeder required no further treatment for any condition resulting from the involved accident. Accordingly, State Farm advised Ms. Schroeder that it would not consider any further chiropractic expenses or loss wages.

Ms. Schroeder continued to go to Dr. Fleming. State Farm required that Ms. Schroeder participate in a third IME. Dr. Terrel B. Bounds, a medical doctor, performed that examination. He too concluded that Ms. Schroeder had reached MMI and required no further treatment. Based on that report State Farm advised Ms. Schroeder that it would not pay for any further medical treatment or lost wages. Nevertheless, Ms. Schroeder continued to see Dr. Fleming and Dr. Wall.

Ms. Schroeder gave the required statutory notices, but State Farm declined to pay any chiropractic bills incurred after the date of the chiropractic IME, and any medical bills incurred after the date of the medical IME. Ms. Schroeder initiated this action to collect bills submitted by Dr. Fleming.

State Farm sought a Summary Judgment based on an alleged assignment of benefits to Dr. Fleming. The trial judge found that Ms. Schroeder assigned her rights to the PIP benefits to Dr. Fleming and therefore she had no standing to bring the action. Ms. Schroeder moved for summary judgment on the grounds that State Farm could not properly deny future payments based on one IME. The trial judge rejected this argument. Accordingly, the court entered Final Judgment in favor of State Farm.

Subsequent to entry of the Final Judgment, the parties filed additional motions and the court entered orders on those motions. Ms. Schroeder moved for fees and costs pursuant to §57.105 Fla. Stat. and moved to strike or deny State Farm’s Motion for Entry of Final Order. The trial judge denied this motion. State Farm moved for fees and costs based on an offer of settlement. The trial judge granted this motion. Ms. Schroeder also filed a Motion for Rehearing on the Final judgment. That was denied and an Amended Final Judgment was entered.

Ms. Schroeder appeals the Final Judgment and Amended Final Judgment. She also appeals the order denying her request for fees under § 57.105 Fla. Stat. and the order granting State Farm fees and costs based on an offer of settlement. This Court will consider each of these orders.

Before considering Ms. Schroeder’s points, however, the Court will revisit State Farm’s argument that the Court lacks jurisdiction. This Court has previously dealt with this matter in denying a motion to dismiss this appeal. Nevertheless, the Court will look at the issue again.

Unlike the situation in State ex rel Cantera v. District Court of Appeal, 555 So. 2d 360 (Fla. 1990), relied upon by State Farm, the trial judge here did not erroneously or by mistake enter an order denying a motion for rehearing. He simply did not consider the motion. Instead, he treated Ms. Schroeder’s Motion for Fees under § 57.105 or Motion to Strike or Deny State Farm’s Motion for Entry of a Final Judgment, as a motion for rehearing. In Cantera, the trial judge considered the motion for rehearing, denied it, and then changed his mind. In contrast, in the case at bar the trial judge considered a motion other than the Motion for Rehearing, treated the other motion as a motion for rehearing, denied it, and never considered the Motion for Rehearing that had been filed until much later.

The trial judge’s subsequent order denying the Motion for Rehearing stated that he had denied the Motion for Rehearing in the aforementioned order. That may well have been the trial judge’s intent, but since the face of the order indicates that he had not considered the timely Motion for Rehearing, but considered a completely different motion at the time the original order was entered, he could not have carried out that intent. Furthermore, it would be unfair to the litigants to consider that original order as it is worded as a ruling on the Motion for Rehearing. The subsequent order denying the Motion for Rehearing is the one that did in fact deny the Motion for Rehearing and started the running of the appeal time. Based on that date, the appeal was timely and this Court has jurisdiction to consider the merits of the appeal.

I. The validity of the trial court’s conclusion that there was an assignment of the benefits to Dr. Fleming depriving Ms. Schroeder of standing and requiring entry of summary judgment.

            The trial judge was correct in its ruling that there was an assignment to Dr. Fleming, which deprived Ms. Schroeder of standing. Ms. Schroeder’s reliance on Wallace v. Omni Ins. Co., Appeal No. 96-6229CI-88B is misplaced for two reasons. First, the assignment in the case at bar is far clearer than the alleged assignment in Wallace. It is clear on the face of the assignment that Ms. Schroeder gave up her right to seek PIP benefits to Dr. Fleming. While Dr. Fleming had a right to seek recovery from Ms. Schroeder, to do so would of course permit her to join the insurer as a third party defendant. See Livingston v. State Farm Mutual Automobile Insurance Co., 774 So. 2d 716 (Fla. 2d DCA 2000). Second, subsequent controlling authority leaves no doubt that the trial judge was correct. Those authorities are Livingston v. State Farm Mutual Automobile Insurance Co., 774 So. 2d 716 (Fla. 2d DCA 2000) and Oglesby v. State Farm Mutual Automobile Insurance Company, 26 Fla. L. Weekly 702 (Fla. 5th DCA March 9, 2001).

In Livingston, the court holds that if there is an unqualified assignment, the insured has no standing to sue. Moreover, the court reaches essentially the same conclusions as to a conditional assignment. In that regard, the court says:

  Even if the assignment is not irrevocable and unqualified, the worst that could happen from Ms. Livingston’s perspective in our hypothetical example is that the chiropractor could choose to sue her for $600 after he lost an arbitration or a lawsuit. If that is allowed, then Ms. Livingston could add State Farm as a third-party defendant because she was not a party to either the lawsuit or the arbitration and should not be bound by its determination if the chiropractor is allowed to sue her for the extra $500. Alternatively, if the chiropractor were allowed to revoke the assignment prior to arbitration or a lawsuit and seek payment directly from Ms. Livingston, she could then bring a typical county court lawsuit for PIP benefits. Because Ms. Livingston could sue State Farm if and when the need arises, there is no need to provide her with a cause of action while her claim has been assigned to a health care provider.

Id. at 718.

            Similarly, in Oglesby the court concludes that where the insured assigns PIP benefits to the health care provider, but remains liable for any medical bills that the insurer has not paid, the insured loses standing to maintain a direct action against the insurer. In the case at bar, the fact that the health care provider could sue the insured at any time without seeking benefits from the insurer does not take the case outside of Oglesby. The assignment clearly conveys ownership of the claim to the health care provider. If the health care provider declines to seek payment from the insured then according to Oglesby, the healthcare provider would have to reassign the benefits under the policy to the insured. Oglesby is compelling authority in the case at bar.

            Ms. Schroeder clearly assigned her benefits to Dr. Fleming. Under Livingston, which is controlling, it doesn’t matter whether the assignment was conditional or not. Ms. Schroeder has no standing until Dr. Fleming pursues a claim against her. Under Ogelsby, the assignment in the case at bar would be unqualified and Ms. Schroeder would also lack standing. Thus, as to Dr. Fleming’s claim the trial judge correctly entered a summary judgment.

            Ms. Schroeder raises various other arguments in an effort to avoid the trial judges ruling. Those include a claim that she was a third party beneficiary and an indispensable party and that the statutory arbitration requirement mandate reversal of the summary judgment. All of these matters are without merit. Indeed, the arbitration requirement has been declared unconstitutional. See Nationwide Mutual Fire Insurance Company v. Pinnacle Medical Inc., 753 So. 2d 55 (Fla. 2000).

            Ms. Schroeder also argues that the record does not conclusively establish that Dr. Wall’s bills were paid. There apparently is no assignment to Dr. Walls, so this is an important point. This Court finds, however, that Ms. Candace Lovchuk, State Farm’s agent, gave a deposition that establishes that all bills were paid and Dr. Wall did not submit any after the termination date. There is no sworn material in the record refuting this testimony. Thus, the record conclusively establishes that there is no bill from Dr. Wall involved in this case and summary judgment in favor of State Farm was proper.

II. Validity of termination of future benefits as to all health care providers licensed under the same chapter as the IME examiner.

            Ms. Schroeder argues that the trial judge erred in apparently concluding that an insurer can deny all future benefits as to all health care providers licensed under the same chapter as the IME examiner based on a single IME performed by a person who is also licensed under that chapter. Recently, the Second District made it clear that future benefits can be properly denied based on an IME that finds that no future treatment is necessary. See Auto Owners Insurance Company v. Marzulli, 26 Fla. L. Weekly D734 (Fla. 2d DCA March 14, 2001). There is no reason why the same ruling would not apply to all future benefits by health care providers in the discipline covered by the IME. Thus, the trial judge did not err in concluding that the IMEs in this case were sufficient to permit rejection of future medical benefits.

            III. Attorney’s fees and costs.

            Ms. Schroeder has made no argument concerning her claim for fees and costs under §57.105. Thus, the Court concludes that she has abandoned this argument.

            Ms. Schroeder argues that the trial judge erred in awarding fees and costs to State Farm based on the offer of judgment because State Farm was not the prevailing party. This Court disagrees. As suggested by State Farm, it is the prevailing party and the trial judge did not err in awarding fees and costs to State Farm.

            IV. Conclusion.

            Accordingly, this Court affirms the Final Summary Judgment in favor of State Farm and all other rulings appealed in this cause.

Appeal No. 98-5353-CI-88B

            DONE AND ORDERED in chambers at St. Petersburg, Pinellas County, Florida this 3rd day of April, 2001.

David A. Demers
Circuit Judge, Appellate division


cc:        Arthur Liebling, Esq.

Jeffrey M. Katz, Esq.