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
(
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
CLETRUS SMITH,
Appellant,
vs. Appeal No. 06-0042AP-88B
UCN522006AP000042XXXXCV
STATE FARM
MUTUAL AUTOMOBILE
INSURANCE
COMPANY,
Appellee.
______________________________________/
Appeal from
Small Claims Division
Joseph C. Whitelock, Esquire
Attorney for Appellant
Gale L. Young, Esquire
Kimberly A. Sandefer, Esquire
Attorneys for Appellee
ORDER GRANTING MOTION FOR REHEARING,
ORDER SETTING ASIDE ORDER AND OPINION AND AMENDED ORDER AND OPINION
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
________________________________
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
Gale L. Young, Esquire
Kimberly A. Sandefer,
Esquire