County Civil Court: INSURANCE – summary judgment – trial court erred in entering summary judgment for insurer based on policy language requiring insurer’s consent before assigning interest – provision of insurance which prohibits assignment except with insurer’s consent does not apply to prevent an assignment after loss – loss occurred at the time of the accident - Final Judgment reversed.  Turner Orthopaedic & Injury Center, Inc. v. Metropolitan Property and Casualty Ins. Co., No. 02-7260CI-88B (Fla. 6th Cir. App. Ct. March 30, 2004). 








INC., as assignee of CHRISTOPHER MORROW,


vs.                                                                                               Appeal No. 02-7260CI-88B







Opinion filed _______________________


Appeal from Final Judgment

Pinellas County Court

County Judge Walt Fullerton


William K. Saron, Esquire

Attorney for Appellant


Gale L. Young, Esquire

Attorney for Appellee




            THIS CAUSE came before the Court on appeal, filed by Turner Orthopaedic & Injury Center, Inc. (Turner), as assignee of Christopher Morrow (Morrow), from the Final Judgment, entered October 24, 2002, in favor of Metropolitan Property & Casualty Insurance Company (Metropolitan).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

            The facts of this case are undisputed.  The underlying action arose from an automobile accident, on November 9, 2000, involving Morrow, who was covered under an insurance policy issued by Metropolitan that provided Personal Injury Protection (PIP) benefits.  Morrow sought medical treatment for his injuries.  On December 4, 2001, Turner filed a Complaint against Progressive alleging that Progressive had failed to pay for reasonable expenses incurred by Morrow, specifically a medical bill in the amount of $240.00 for treatment provided by Turner on August 7, 2001.  On August 5, 2002, the trial court granted Progressive’s Motion for Summary Judgment finding, as a matter of law, that Turner lacked standing to sue Progressive “because the contract upon which suit is brought specifically prohibits assignment without written consent of the Defendant [Progressive] and because the contract upon which suit is brought provides for a specific procedure for assignment, . . . neither of which the insured/claimant complied with in his purported assignment.” 

            The sole issue raised by Turner is whether the trial court erred in entering summary judgment based on the language regarding assignments set forth in Section VII, subsection 11, of the subject policy of insurance issued by Metropolitan to Morrow.  Both parties agree that there is no genuine issue of material fact and that this appeal involves only whether the trial court correctly determined that Progressive was entitled to prevail as a matter of law.  In reviewing the record de novo, the Court finds that the trial court committed reversible error in entering summary judgment in favor of Progressive.  See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000)(setting forth the de novo standard of review of a trial court’s decision to grant a motion for summary judgment).

            Section VII, subsection 11, on Morrow’s PIP policy states that, “[n]o change of interest in this policy is effective unless we consent in writing by means of endorsement to this policy.”  However, after the accident, on August 2, 2001, Morrow executed a document, titled “Assignment, Lien, Authorization Insurance Benefits,” which directed the insurance company to pay Turner directly for services rendered.  It states, in part, “I hereby assign and transfer Assignee’s any and all causes of action that I might have or that might exist in my favor against such company.”

            The Court finds that this assignment was valid.  As stated by Third District Court of Appeal in Gisela Investments, N.V. v. Liberty Mutual Insurance Company, 452 So.2d 1056 (Fla. 3d DCA 1984), “[a] provision of insurance which prohibits assignment thereof except with consent of the insurer does not apply to prevent assignment of the claim or interest in the insurance money then due, after loss.”  The Court finds that Morrow’s PIP policy defines “loss” as “direct and accidental loss or damage” and, further, that the loss occurred at the time of the accident.  Therefore, Morrow could assign his PIP benefits following the automobile accident without Metropolitan’s consent.  See e.g. Medical Evaluation Centers, Inc. v. Metropolitan Property and Casualty Insurance Company, 9 Fla. L. Weekly Supp. 326b (Fla. 13th Cir. Ct. April 3, 2002)(denying insurer’s motion for summary judgment by holding that “loss” occurred at the time of the accident)(citing Lexington Insurance Company v. Simkins Industries, Inc., 704 So.2d 1384 (Fla. 1998)); see also Shaker v. Metropolitan Property and Casualty Insurance Company, 9 Fla. L. Weekly Supp. 399b (Fla. 13th Cir. Ct. April 8, 2002)(denying insurer’s motion for summary judgment by holding that assignment was not invalid by failure of insured to obtain insurer’s prior written consent).  

            Hence, the Court must determine whether the Final Judgment can be sustained under an alternative theory or principle.  See Florida Emergency Physicians-Kang and Associates v. Parker, 800 So.2d 631, 634 (Fla. 5th DCA 2001)(stating that “'[e]ven though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling”).  The Court finds that Morrow and Turner entered into an agreement, titled “Direct Payment Authorization Without Assignment of Benefits and/or Revocation of Assignment.” The Direct Payment Authorization, signed by Morrow on July 31, 2001, specifically states:

The authorization for direct payment should not be deemed an assignment of benefits, in that I, the patient/insured, retain all rights to enforce my insurance contract.  The undersigned retains these rights even if the insurance carrier subsequently receives a document or form or some other writing from the health care providers that there was an assignment of benefits.  This writing supersedes those forms and in spite of any language to the contrary, there is no assignment of benefits.  The only way this direct payment authorization can be revoked or superceded is by subsequent written notice from me or my duly authorized representative by certified mail.  Furthermore, this direct payment authorization without assignment of benefits transfers no right, title or interest, in the said contract other than the right to receive direct payment as specified herein above.  (emphasis added).


            This Direct Payment Authorization was attached to Metropolitan’s Motion for Summary Judgment, as Exhibit B, and was obviously considered by the trial court in granting summary judgment.  The clear and unambiguous language of the Direct Pay Authorization expressly prohibited any kind of assignment and it is undisputed that Morrow did not revoke the Direct Pay Authorization prior to signing the Assignment document just three days later.  Nonetheless, the Court agrees with Turner that there was no basis for the trial court to rely on the Authorization since Metropolitan was not a party to the document and had no standing to raise the Authorization as a defense.  At best, the Court finds that the Direct Pay Authorization creates a genuine issue of material fact as to whether the Assignment is valid or not which would preclude summary judgment as a matter of law.  See Volusia County, 760 So.2d at 130 (stating that summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law).

            Therefore, it is,

            ORDERED AND ADJUDGED that the Final Judgment is reversed and this cause is remanded for action consistent with this Order and Opinion. 

            It is further

            ORDERED AND ADJUDGED that the Turner’s Motion for Attorney’s Fees is granting contingent upon it ultimately prevailing in the proceedings below.  The trial court shall determine the amount of such reasonable attorneys fees to be awarded.  Metropolitan’s Motion for Attorney’s Fees is denied.   

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of March 2004. 






                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division






Copies furnished to:


Judge Walter Fullerton


William K. Saron, Esquire

1700 66th Street North, Suite 207

St. Petersburg, FL  33710


Gale L. Young, Esquire

15436 N. Florida Avenue, Suite 103

Tampa, FL  33613