ALFA VISION INSURANCE CORPORATION

v.

TAMPA CHIROPRACTIC CENTER

Before WALLIS, JOHNSON, PERRY, JR., J.J.

PER CURIAM.

FINAL ORDER AFFIRMING IN PART AND REVERSING IN PART TRIAL COURT

Appellant, Alfa Vision Insurance Corporation (“ALFA”) timely files this appeal of the lower court’s “Final Judgment” rendered on February 24, 2011 granting various motions for summary judgment finding that Appellee, Tampa Chiropractic Center a/s/o Victor Gue (“TAMPA”) was entitled to No-Fault benefits from ALFA for medical services rendered to three assignors/patients. This Court has jurisdiction pursuant to section 26.012(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320. Summary of Facts and Procedural History ALFA issued a policy of insurance to Victor Gue providing him with No-Fault benefits. Per TAMPA’s allegations, on January¹, 2007, Victor Gue, Janeara Johnson, and Shinika Johnson (collectively referred to as “assignors”) were involved in a motor vehicle accident while occupying the insured vehicle. In January 2007, the assignors obtained treatment by TAMPA for injuries sustained in the accident and executed separate assignments of benefits which assigned their right to No-Fault benefits to TAMPA. Thereafter, the assignors obtained treatment at another medical facility, Wellness Health Associates, Inc. (“WELLNESS”). TAMPA submitted the bills to ALFA for the services it rendered to the assignors along with the assignments. ALFA informed TAMPA that payment of the claims was not forthcoming as it was investigating the coverage and liability. In May of 2007, TAMPA submitted to ALFA three separate pre-suit demand letters for each assignor’s claim with the subject medical bills and assignments. ALFA did not issue payment pursuant to TAMPA’s demand letters. As a result of ALFA’s refusal to remit payment for the bills, in May of 2007 TAMPA filed three separate lawsuits as assignee of the assignors against ALFA for recovery of No-Fault benefits.¹ In January of 2009, the lower court consolidated TAMPA’s three lawsuits under case number 2007-CC-8404. Subsequently, in March of 2009, the lower court consolidated WELLNESS’ four lawsuits under case number 2007-CC-8404 as WELLNESS

This Court next addresses the lower court’s ruling as to TAMPA’s standing to bring and maintain the action in the lower case. ALFA alleged in its Amended Sixth Affirmative Defense that “Plaintiff lacks standing to bring this claim as the Assignment of Benefits does not assign Plaintiff any rights to bring suit. Plaintiff lacks standing as it is not identified as the assignee. Instead, the Assignment of Benefits does not designate which entity is entitled to bring suit.” ALFA asserted this defense because the Assignment of Benefits documents did not include TAMPA’s name nor any other health care provider’s name. On October 14, 2010, TAMPA filed its “Motion for Summary Judgment as to Standing pursuant to an Assignment of Benefits and supporting Memorandum of Law” as to each assignor arguing that the record evidence and testimony confirmed that ALFA had no doubt as to whom the medical provider was or who the assignee was intended to be. Specifically, TAMPA argued that at no time between the time, January 23 through 25, 2007, when ALFA received TAMPA’s medical bills and when this action was filed, did ALFA ever indicate that it did not know from whom it was receiving the bills and who held the assignments. In support of the Motion for Summary Judgment, TAMPA’s submitted the affidavit from its owner, Michelete Julssaint dated October 13, 2010 confirming the Assignment of Benefits to TAMPA from the assignors. Also, TAMPA pointed out that the evidence showed that ALFA forwarded correspondence to TAMPA informing it that the three separate claims were under investigation as to coverage and liability, but there was no mention of the assignment issue. Lastly, TAMPA argued that ALFA did not notify TAMPA in response to the demand letter or at any time prior to the filing of this lawsuit that it contested the validity of the Assignments of Benefits. In response to TAMPA’s Motion for Summary Judgment, ALFA argued that the assignments were ambiguous and thus, should have been presented to the jury as the fact finder to determine whether the assignors intended to assign their benefits to TAMPA. ALFA also argued that Michelete Julssaint’s affidavit should have been stricken because it was conclusory, self-serving, and did not state the intent of the assignors. Upon hearing the Motion for Summary Judgment, the lower court did not strike Michelete Julssaint’s affidavit and on February 16, 2011 entered an order granting the Motion as to each assignor finding that the record evidence showed that TAMPA was the assignee of the Assignment of Benefits.

Upon review of the record evidence, this Court finds that the lower court’s ruling granting TAMPA’s motion for summary judgment as to standing was supported by ample evidence showing that:¹) TAMPA was the assignee of the No-Fault benefits;²) ALFA was sufficiently put on notice of the assignment;³) ALFA’s correspondence and another actions show that it was aware of the assignment;⁴) ALFA did not question the assignment during the events leading up to when TAMPA filed the lawsuits; and 5) The evidence supports that there was an equitable assignment of the benefits to TAMPA. See Giles v. Sun Bank, N.A., 450 So. 2d 258 (Fla. 5th DCA 1984). Therefore, this Court finds that there is no genuine issue of material fact as to the assignment of the No-Fault benefits to TAMPA and a matter of law the lower court’s ruling as to standing must be affirmed. Order Granting Summary Judgment as to Fraud Issue

Lastly, this Court addresses the lower court’s rulings on TAMPA’s Motions for Summary Judgment filed on September 10, 2010 that addressed ALFA’s Second, Third, and Amended Fifth Affirmative Defenses alleging fraudulent activity pertaining to the accident. ALFA’s allegations were that the alleged motor vehicle accident was intentional and thus, under section 627.736, Florida Statutes, medical claims for persons shown to have committed insurance fraud would not be recoverable. Specifically, as stated in the Amended Fifth Affirmative Defense, ALFA alleged that any injuries to the assignors, if found to exist, were the result of fraud perpetrated on ALFA by the assignors and others involved in the alleged incident and/or parties or others allegedly insured under the insurance policy. ALFA further asserted that the assignors and/or others were participants of a staged accident and if the assignors suffered any injuries they were intentionally caused. In support of its Motions for Summary Judgment on this issue, TAMPA submitted the deposition of the insured/assignor, Victor Gue, dated March 11, 2008. In response to the motions, ALFA submitted the affidavit of assignor, Shinika Johnson, dated August 10, 2009 and subsequently portions of her affidavit were stricken. Upon hearing, the lower court on February 18, 2011 entered orders granting the Motions for Summary Judgment. From what this Court is able to discern, the pertinent information gathered and summarized from by Victor Gue’s deposition was that:¹) He was driving the vehicle when the accident occurred and the other persons in the vehicle with him were Janeara Johnson and Shinika Johnson. He did not recall whether Jacquet Lecoit was in the vehicle. The transcript from Jacquet Lecoit’s deposition is also included in the court record. In his deposition, Jacquet Lecoit stated that he was a passenger in the vehicle along with Shinika Johnson and Janeara Johnson and Victor Gue was driving the vehicle.⁴ Conversely, the pertinent information gathered and summarized from the portion of Shinika Johnson’s affidavit that was not stricken includes that:¹) She, Victor Gue, Janeara Johnson, Jacquet Lecoit were passengers in Victor Gue’s vehicle;²) An unknown man, not Victor Gue, was driving the vehicle;³) Prior to the accident, they had been riding in Victor Gue’s vehicle for two to three hours and were all in his vehicle when the accident occurred;⁴) Prior to the accident, the driver would suddenly hit the brakes and when he saw another vehicle pull out into traffic he would accelerate quickly as if he was trying to hit that vehicle; 5) The driver would get angry and hit the steering wheel if he did not hit a vehicle; 6) The driver stopped at a green light and allowed a vehicle to go in front of Victor Gue’s vehicle and as the other vehicle began to pull out, the driver accelerated and was struck by the other vehicle; 7) After the accident occurred the unknown man who was driving disappeared; and 8) Shinika stated that she was not injured in the accident and stopped going to the chiropractor. With a motion for summary judgment, the moving party must show conclusively that there is no genuine issue of material fact and despite the presumption of correctness which attaches to an order of the trial court, the reviewing court must draw every possible inference in favor of party against whom summary judgment motion was granted. Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30, 32 (Fla. 1977). On appeal, a reviewing court should consider the evidence contained in the record in the light most favorable to the nonmoving

/S/_________________________ F. RAND WALLIS Circuit Judge

/S/

/S/_________________________ ANTHONY H. JOHNSON

BELVIN PERRY, JR. Circuit Judge

Circuit Judge CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished to: Robert Alden Swift, Esquire and Tara Tamoney, Esquire, Cole, Scott & Kissane, P.A., Tower Place, Suite 750, 1900 Summit Tower Boulevard, Orlando, Florida 32810, [email protected], [email protected], [email protected] and Crystal L. Eiffert, Esquire and Chad A. Barr, Esquire, Eiffert & Associates, P.A., 122 E. Colonial Drive, Suite 210, Orlando, Florida 32801, [email protected], [email protected] on this 18th day of February, 2013.

/S/

Judicial Assistant