County Civil Court:  INSURANCE – summary judgment – assignment – “Patient Authorization for Direct Payment without Assignment” contained inconsistent language and created a doubt as to whether document was a valid assignment – summary judgment must be reversed as record showed disputed issues of material fact - Final Judgment reversed.  Smith v. State Farm Mutual Automobile Ins. Co., Appeal No. 06-0042AP-88B (Fla. 6th Cir. App. Ct. July 9, 2007). 










vs.                                                                                     Appeal No. 06-0042AP-88B








Appeal from Pinellas County Court

Small Claims Division


Joseph C. Whitelock, Esquire

Attorney for Appellant


Gale L. Young, Esquire

Kimberly A. Sandefer, Esquire

Attorneys for Appellee






            THIS CAUSE came before the Court on Appellant’s Motion for Rehearing, filed by Cletrus Smith (Smith), and the Appellee’s Response to Appellant’s Motion for Rehearing, filed by State Farm Mutual Insurance Company (State Farm).  Upon consideration of the same, the Court finds that the Motion for Rehearing must be granted and the Order and Opinion, entered on February 27, 2007, must be set aside as the 2002 version of Florida Statutes, section 627.736(11), applicable at the time Smith filed his suit against State Farm, did not mandate the service of a pre-suit demand letter as this Court erroneously concluded in its previous opinion.  Accordingly, the Court enters this Amended Order and Opinion and reverses the Final Judgment in favor of Defendant as set forth below. 

            The record shows that on December 17, 2002, Smith filed his Statement of Claim against State Farm seeking damages for unpaid PIP benefits for medical services provided by Harry D. Wassel, M.D.  No documents were attached to the Statement of Claim.  On March 25, 2004, State Farm filed its first motion for summary judgment arguing that summary judgment should be granted in its favor as Smith failed to comply with State Farm’s records request, made pursuant to Florida Statutes, section 627.736(6), failed to serve State Farm with a pre-suit demand letter as required by Florida Statutes, section 627.736(11), and that an affidavit of Harry D. Wassel, dated March 23, 2003, provided that Dr. Wassel had written off any unpaid charges incurred by Smith.  The trial court denied summary judgment for the sole reason that there appeared to be genuine issues of fact regarding whether State Farm had requested additional records under section 627.736(6).  

On October 28, 2004, State Farm filed its Answer and Affirmative Defenses, again asserting that Smith lacked standing.  January 31, 2005, State Farm filed its second motion for summary judgment arguing that Smith lacked standing to sue State Farm as he had assigned his benefits under his policy to Dr. Wassel.  Smith and Dr. Wassel both responded by filing affidavits stating that each had the understanding that the purported assignment was intended to allow either Smith or Dr. Wassel to initiate PIP litigation in the event medical bills were not paid.  The trial court granted State Farm’s motion to strike the affidavits of Smith and Dr. Wassel and granted summary judgment in favor State Farm finding that Smith had assigned his rights under his policy to State Farm. 

Before this Court, Smith argues that the trial court erred in granting summary judgment in favor of State Farm based on the finding that Smith had assigned his rights to Dr. Wassel and, therefore, lacked standing to file suit.  In reviewing this issue, the Court reiterates that “if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.”  See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995).

The Court finds that there is a genuine issue of material fact as to whether Smith gave up his right to PIP benefits, including his right to enforce the terms of his insurance contract, based on the document entitled “Patient Authorization for Direct Payment without Assignment.”  This document contains inconsistent language and creates at least a doubt as to whether it constitutes a valid assignment.  Hence, it was error for the trial court to enter summary judgment.  See id.; see also Hartford Insurance Company of the Midwest v. O’Connor, 855 So.2d 189, 191 (Fla. 5th DCA 2003)(affirming the reversal of summary judgment when there was a material issue of fact as to whether the parties had mutually rescinded the assignment).

Therefore, it is,

            ORDERED AND ADJUDGED that Final Judgment in Favor of Defendant is reversed and this cause is remanded for action consistent with this Amended Order and Opinion.  It is further

            ORDERED AND ADJUDGED that the Appellant’s Motion for Attorneys Fees and Costs is granted to the extent that the Appellant shall be entitled to reasonable appellate attorney’s fees should he ultimately prevail in the proceedings below.  In such case, the trial court shall determine that amount of appellate attorney’s fees to be awarded.  The Appellee’s Motion to Tax Attorney’s Fees and Costs is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of June 2007.




                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division






______________________________                        ______________________________

AMY M. WILLIAMS                                               PETER RAMSBERGER

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division



Copies furnished to:


Judge Henry J. Andringa


Joseph C. Whitelock, Esquire

3245 Fifth Avenue North

St. Petersburg, FL  33713


Gale L. Young, Esquire

Kimberly A. Sandefer, Esquire

15411 North Florida Avenue

Tampa, FL  33613