13 Fla. L. Weekly Supp. 1107a
Insurance -- Personal injury protection -- Priority of payments -- Where hospital did not timely perfect its lien, lien lost its priority until such time as it was properly recorded, and provider's bill, which was received both before the hospital's bill and before recording of lien, was entitled to priority under English rule -- English rule applies to assignees of PIP benefits -- With regard to insurer's contention that it had 30 days to investigate claim and make determination on whether to pay provider's bill, insurer cannot shuffle priority of payments in that 30-day period
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Celeste Mejia, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 06-SC-000180. August 8, 2006. John R. Sloop, Judge. Counsel: Richard Oliver Hale, IV, Rutledge Bradford, Orlando. Fotini Z. Manolakos, St. Petersburg.
ORDER GRANTING PLAINTIFF'S MOTION FOR
FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT and this Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:
STATEMENT OF ISSUE
The Plaintiff moved for final summary judgment contending that the Defendant wrongfully reserved benefits for a hospital lien that was not timely perfected. Pursuant to Florida law, set forth below, the failure of a hospital to timely perfect its lien does not invalidate the hospital lien, but results in the hospital being an unsecured creditor (not entitled to priority) at least until such time as the lien is filed. Because the Plaintiff's bill was received and in Defendant's possession before the lien was perfected, payment should have been made on the Plaintiff's bill, pursuant to the English Rule law of priorities.
UNDISPUTED FACTS
Celeste Mejia sought treatment in the Emergency Room of Florida Hospital on August 14, 2005, for injuries sustained in automobile collision. Her initial treatment was rendered by the Plaintiff, who are the contracted Emergency Room Doctors for Florida Hospital, and she was discharged from the hospital on August 19, 2005. The charges for Celeste Mejia's treatment by the Plaintiff totaled $731.00.
The charges were received by the Defendant on September 23, 2005, but the Plaintiff's bill was not paid. According to the Deposition testimony of the Defendant's Corporate representative, Monique Brown, taken on June 7, 2006, an explanation of benefits was generated saying the benefits were exhausted, however, she confirmed that as of September 23, 2005, the benefits were not exhausted.
Ms. Brown testified that the Defendant was on "constructive notice" of a lien based on a conversation she had with a representative from Florida Hospital on September 20, 2005. However, she also testified that the bill from Florida Hospital was not received until September 30, 2005. Defendant did not pay the Plaintiff's bill within thirty days of receipt or at any time thereafter, and instead, chose to exhaust the patient's benefits by paying the hospital on or about October 13, 2005.
Ms. Brown testified that she eventually received a copy of the lien, which had been filed on October 26, 2005, 67 days after discharge.
ANALYSIS OF THE LAW
There is no dispute that the Plaintiff's bill was submitted timely and prior to the hospital bill. Further, the Plaintiff does not dispute, that when a hospital lien is timely filed with the Clerk of the Court in Orange County, it receives preferential treatment under Florida law. However, when a lien fails to be timely filed, it loses its preferential status and takes its place in line for payment based upon when bills are received.
In the present case, the hospital lien indicates that Celeste Mejia was discharged from Florida Hospital on August 19, 2005. Pursuant to Article IV Section 20-157 of the municipal code of Florida:
in order to perfect a lien under this article, the executive officer or agent of a hospital or responsible governmental officer, before or within ten (10) days after, any suchperson shall have been discharged from such hospital, shall file in the office of the clerk of the circuit court ofthe county in which such hospital shall be located, a verified claim in writing. . . . .
Section 20-158 states:
the clerk of the circuit court shall endorse on such claim the date and hour of filing, [and] shall provide a hospital lien book with proper index in which he shall record such claim.
Florida law makes it clear that failure to timely perfect a lien does not void the lien, but does cause it to lose its priority until such time as it has properly been recorded. Public Health Trust of Dade County v. Carroll, 509 So.2d 1232 (Fla. 4th DCA 1987). Here, the hospital lien should have been recorded no later than August 29, 2005, in order to take priority over all other billings. It was recorded by Martha Haynie, Comptroller on October 26, 2005, approximately 57 days late. Accordingly, the bill submitted by the Plaintiff was entitled to payment as it was received before both the hospital's bill and the recording of the lien, thereby giving Plaintiff's bill priority.
The Defendant contends that it had 30 days to investigate this claim and make a determination on whether to pay the Plaintiff's bill. The Plaintiff does not disagree with the Defendant's contention, but the Defendant assumes the risk for deciding not to make payment. The Defendant cannot shuffle the priority of payments in that 30 day period. The Florida Supreme Court in Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965) adopted the English rule establishing priorities of assignees as to claims asserted the rule provides essentially first come, first pay. The English rule applies to assignees of PIP benefits, according to the Fifth District Court of Appeal, which is binding upon this Court. State Farm Fire and Casualty vs. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990).
ORDERED AND ADJUDGED that:
1. The Plaintiff was entitled to payment of its bill received before both the hospital bill and its untimely filed lien.
2. The Plaintiff is entitled to payment in full of its bill (at 80%), plus interest calculated 30 days after September 23, 2005.
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13 Fla. L. Weekly Supp. 1086b
Insurance -- Personal injury protection -- Discovery -- Depositions -- Motion for protective order for insurer's corporate representative with most knowledge of procedure reports denied despite insurer's claims that reports will not be utilized in case and information is proprietary, trade secret and work product
PHYSICIANS INJURY CARE CENTER, INC., f/u/b/o JAMES CATON and PHYSICIANS INJURY CARE CENTER, INC., f/u/b/o ROBIN CATON, Plaintiffs, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2003-CC-16255. August 11, 2006. Carolyn B. Freeman, Judge. Counsel: Roy J. Smith, IV, Weiss Legal Group, Maitland; Rutledge Bradford, Orlando; and Robert Melton, Orlando, for Plaintiff. Rachel P. Ray, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, Co-Counsel; and Karen M. Walker, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT'S MOTION
FOR PROTECTIVE ORDER (KEITH BENEFIEL)
This matter came for hearing before the Court on April 20, 2006, regarding Defendant's Motion For Protective Order (Keith Benefiel). Plaintiff has requested the deposition of the corporate representative with the most knowledge of "procedure reports". Plaintiff asserts that the information is relevant and at the very least will lead to the discovery of admissible evidence.
Defendant has filed its Motion For Protective Order asserting that the "procedure report" will not be utilized in this case; that the information is proprietary and trade secret; work product; requires Defendant to produce a document not in existence; requiring substantial time to verify or explain; and it will provide confidential business practices of other providers. Subsequently, at the hearing, Defendant suggested that Plaintiff use the deposition of Mr. Benefiel in another case.
Therefore, it is ORDERED and ADJUDGED:
1. That the Defendant's Motion For Protective Order (Keith Benefiel) is denied.
2. That the parties will coordinate a date for the scheduling of the deposition of the corporate representative with the most knowledge as to the particular issue.
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13 Fla. L. Weekly Supp. 392a
Insurance -- Personal injury protection -- Standing -- Assignment -- Equitable -- Where law allows assignment to be written, oral, or both, insured unequivocally stated intent to transfer right to have emergency services paid to ambulance service that transported him to hospital, parties acted in accord with that intent, and insurer would be justified in paying debt to ambulance service as it is entity that provided emergency services to insured, valid assignment exists
RURAL METRO AMBULANCE, as assignee John Pierre, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-1933. August 18, 2005. John Sloop, Judge. Counsel: Rutledge M. Bradford, Rutledge Bradford, Orlando. Michael. Liebgold, St. Petersburg.
ORDER DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
THIS MATTER having come before this Court on Defendant's Motion for Summary Judgment and this Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
The Defendant's Motion for Summary Judgment is hereby denied. This exact assignment has been the source of three published opinions and numerous others that have not been published. This very court has previously ruled that this is a valid assignment in Rural Metro Ambulance, Inc. a/a/o Ashley Billings vs. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 568a (April 2004), holding, "The Defendant's Motion to dismiss for lack of standing is denied. The Defendant has asserted that Florida Law requires an assignment to be in writing and absent a written assignment, the Plaintiff's claim must fail. The court notes that an assignment can be express or implied by the circumstances. The true test is whether the debtor would be justified in paying the debt to the person claiming as the assignee McClure vs. Century Estates, 120 So. 4 (Fla. 1928). Further, Florida law recognized both express and implied assignments. Assignments required no specific form. Formal requisites of such an assignment are not prescribed by statute and may be accomplished by parol, by instrument in writing or other mode such as delivery of evidences of the debt, as may demonstrate as intent to transfer and an acceptance of it. Boulevard National Bank of Miami vs. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965). In addition to this ruling, the honorable court has recently held the same assignment to be valid in Rural Metro Ambulance a/a/o Frank Cipris vs. State Farm Mutual Automobile Insurance Company.
Additionally, this same assignment was again challenged in Orange County before the Hon. Leon Cheek in Rural Metro Ambulance Inc. a/a/o Aletha Bryant vs. Liberty Mutual Insurance Company, 11 Fla. L. Weekly Supp. 583a (April 2004). In granting the Plaintiff's Motion for Summary Judgment, the court noted, "The Defendant's assertion that the Plaintiff lacks standing to bring this claim is untenable. The facts show that the insured died while hospitalized for her injuries and the Defendant's suggestion that the Plaintiff must have an assignment in this situation in order to pursue a cause of action is unpersuasive and in contravention of the purpose of the PIP statute. Further, Florida Law provides for an equitable assignment and certainly such a theory is entirely appropriate under the facts of this case."
Finally, this same assignment was again challenged in Seminole county before the Hon. Mark E. Herr in Rural Metro Ambulance, Inc. a/a/o Jane Critchfield vs. Allstate Insurance Company, 12 Fla. L. Weekly Supp. 103a (October, 2004). There, the Defendant once again asserted a lack of standing based on (a) the actual language of the assignment and (b) the fact that it had not been signed. In Critchfield, affidavits of intent of both Ms. Critchfield and Rural Metro Ambulance were filed. After a lengthy and compelling analysis, the court concluded, that the intent of the parties was to effectuate an assignment and noted, "to hold otherwise would result in an unjust result in the fact of the clear intent of the parties. Ms. Critchfield stated her intent and the parties have each acted in accordance with that intent. The law clearly allows for the assignment to be in writing or oral or partially each. The Plaintiff has met this burden and the court finds that a valid assignment exists."
The law is very clear that a valid equitable assignment exists where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be unjust. Giles v. SunBank, NA,450 So. 2d 258 (Fla. 5th DCA 1984). No particular words or form of instrument is necessary to effect an equitable assignment, and any language, however informal, which shows an intention on one side to assign a right and an intention on the other side to receive it, if there is valuable consideration, will operate as an effective equitable assignment (Emphasis added). Giles v. Sunbank, NA, 450 So.2d 258 (Fla. 5th DCA 1984). Assignability of choses in action is the rule rather than the exception and practically the only classes of choses in action which are not assignable are those for personal torts. Parties can generally assign causes of action derived from a contract or a statute. Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994) and Florida Power Corp. v. McNeely, 125 So.2d 311 (Fla. 2d DCA 1960).
Further, the courts have long held that an assignment, unless required by statute to be in writing, may be by parol or other evidence. Tunno v. Robert, 16 Fla. 738, (1878); Mangum v. Susser, 764 So. 2d 653, 25 Fla L. Weekly D1216 (Fla 1st DCA 2000); Protection House, Inc. v. Daverman and Associates, 167 So.2d 65 (Fla. 3d DCA 1964) (the court found an oral agreement to constitute an assignment). Here, there is ample evidence before the court of the parties' intent. Since Florida does not have a requirement that assignments be in writing, the understanding of the parties, as evidenced by sworn statements and testimony, should stand as evidence of intent in this case.
If questions arise regarding the assignment, the court have indicated the true test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee. Giles, supra. Clearly, in the present case, the Defendant would be justified in paying the debt to Rural Metro Ambulance, as it was the entity which provided the emergency services to Ms. Critchfield in this case.
Finally, the law states that any act, which plainly makes an appropriation of a fund or debt may constitute an equitable assignment. McClure v. Century Estates, 96 Fla. 568 (Fla. 1928). It may be parol, or partly in writing and partly oral and may be completed merely by delivery of the subject assigned. In this case, John Pierre's intent was to transfer his right to have emergency services paid to the party that transported him, Rural Metro Ambulance. His intent is clear and evidenced in his affidavit.
The Defendant is seeking an unjust result in the face of the clear intent of the parties. Mr. Pierre has unequivocally stated his intent and the parties have each acted in accordance with that intent. The law clearly allows for the assignment in writing or oral or partially each. The Plaintiff has met this burden and a valid assignment exists in this matter.
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