One of the most common defenses raised by defense attorneys in litigation regarding Personal Injury Protection (“PIP”) is to attack the Plaintiff's Assignment of Benefits. Raising a defense on the Assignment of Benefits actually can spur into multiple defenses including, standing and failure to serve a proper demand letter. Also please remember that Standing is a defense that cannot be waived and can be raised at any time during the litigation.
Under Florida Statute 627.736 (The Florida No-Fault Statute) there is a requirement that you send a valid Assignment of Benefits with EVERY demand letter. The statute under section 10 reads:
(10) DEMAND LETTER
(a) As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice must state that it is a “demand letter under s. 627.736” and state with specificity:
1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.
An assignment of benefits is needed in PIP cases because the actual Plaintiff in a PIP case is usually the medical provider and not the patient. Meaning, the court must have a contract that shows that the patient has assigned the rights to sue in return for something else. The something else is, most of the time, the benefit of them not getting billed at this time for the services rendered.
DIRECTION TO PAY ISSUE:
Direction to pay is a term used by Defense attorneys to make the argument that the “Assignment of Benefits” merely just tells the insurance company where to send the checks. They argue that an agreement to send the checks for the services to the medical provider still leaves the rights to sue to the actual patient. The case law on is a “direction to pay” still an assignment varies by judges and courts throughout the State of Florida.
Whenever there is an argument to be made by a Defense attorney they will make it and raise it. So how will this affect your case? While you are arguing with Defense counsel about the standing issue, they will be drafting motions to stop you from winning your case. If they are successful they will even get the case dismissed and you will have to pay their attorney's fees. If you win the hearing on the standing issue, only then can you get to the heart of the issue. This can take months or a year to get these motions heard. This wastes a lot of time and delays your case from settling and delays the money coming into your office. So why deal with that at all?
WHAT NEEDS TO BE IN MY ASSIGNMENT OF BENEFITS?
When I did Defense work, if I saw the below five items were present in the Assignment of Benefits I wouldn't even raise a defense for it. So what are they?
I cannot mention how many times I read an assignment of benefits and see that the provider has this filled out incorrectly. If your business name is Don's Chiropractic Inc., make sure that in the part of your assignment of benefits it states that name. Not Don's Chiropractic, or Dr. Don etc. The best choice on the business name to assign to is the FEIN number you listed in box 23 of the HCFA form. If your business operates under a dba, make sure your assignment has Don's Chiropractic Inc., d/b/a Don's Chiropractic or whatever dba you have. Further, if you have a dba, please make sure it is always up-to-date with the states requirements. Any fault in any of the above will warrant the Defense to file a Motion for Summary Judgment to try to get the case dismissed.
2. THE WORD IRREVOCABLE-
The term irrevocable is important as it shows to the court intent to relinquish. The case law on the subject loves this term and favors the use of this term. Meaning, that the patient cannot at a later time, have revoked the assignment of benefits. This term leaves the courts knowing that this document is the only document in regards to standing.
3. THE TERM “RIGHTS”-
This is the most important word. The courts, in cases where they have found no standing distinguish between the word rights and the word benefits. Those courts see benefits as payments and not the rights to bring suit. If your assignment has the statement “assigns the rights and benefits, including the right to bring suit, to Don's Chiropractic Inc.” you are going to make this attorney very happy and should never see an MSJ on this issue.
4. THE BENEFIT OF NOT BEING BILLED AT THIS TIME FOR THE SERVICES-
In order for a contract to be valid on its face, both parties must do what is known as a “bargained for detriment”. Meaning each side has to give up something and gain something. It doesn't matter how small this is, it just has to be something. In the context of an assignment of benefits the bargained for the detriment of the medical provider giving up the right to collect payments at the time services are rendered in exchange for the right to bring suit against the insurance company if they do not pay fully is sufficient. In return, the patient is giving up their right to bring suit, but gaining the fact they don't have to pay now. A statement in the assignment similar to “In return for patient assigning the rights and benefits under their PIP insurance, Don's Chiropractic Inc. will allow patient to have services rendered without collecting payments at this time.” This portion of the contract is the least raised issue.
5. THE PATIENTS SIGNATURE-
This may seem obvious, but I cannot tell you how many times I see an unsigned AOB. So what does it mean to the defense attorney if the assignment is not signed? It means that it is an unexecuted contract. Meaning it means NOTHING. So can't you just get them to sign it and everything be good? Yes and no. They can sign it and it would suffice, but we have to start the whole legal process over again. Meaning more time and more time waiting to get paid for the claim. Please train your intake staff to make sure the assignment is signed before the person leaves their first visit.
WHAT DO I DO IF I AM MISSING ANY OF THESE FIVE?
Do not freak out. While many defense attorney's catch one of these issues, we are lucky that some are just not that thorough at what they do. Another scenario is that the insurance provider also wants to see these cases resolved and will choose not to pursue the defense to save them the money and time it takes the defense attorney to fight it. If you think that your assignment is bad , needs changes or is good, give us a call at Dolman Law Group Accident Injury Lawyers, PA at 727-222-6922 or email at [email protected]. We have a dedicated staff to Personal Injury Protection (PIP) cases. They see assignments and argue these types of issues daily. We look forward to speaking with you soon.
Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 727-451-6900