11 Fla. L. Weekly Supp. 933a
Insurance — Personal injury protection — Although damages is element of cause of action, nominal damages may be awarded if provider is unable to prove actual damages — Motion to dismiss denied
VANGARD IMAGING, LLC, (a/s/o Marx Saintelus), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-3071 COSO 62. July 29, 2004. Robert W. Lee, Judge. Counsel: Robert A. Trilling, Davie, for Plaintiff. Harriett L. Uris, Hollywood, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came before the Court for hearing on July 29, 2004 on the Defendant’s Motion to Dismiss, and the Court having heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, it is
ORDERED AND ADJUDGED that as to Count I, Breach of Contract, the Motion to Dismiss is DENIED.
As to Count II, Breach of Contract, the Motion to Dismiss is DENIED. The Court notes that although “damages” is an element of a cause of action, nominal damages for breach of contract will be awarded “[i]f the nonbreaching party proves a breach of contract but is unable to prove [actual] damages.” M. Frey & T. Betting, Introduction to Contracts and Restitution 344 (1988).
As to Count III, Declaratory Relief, the Motion to Dismiss is DENIED. See Tallahassee MRI, P.A. v. Progressive Auto Pro Insurance Company, 11 FLW [Fla. L. Weekly] Supp. 69 (Broward Cty. Ct. 2003); ROM Diagnostics v. Security Nat’l Insurance Company, 9 FLW [Fla. L. Weekly] Supp. 323 (Orange Cty. Ct. 2002).
The Defendant shall file an answer to the Complaint within the next 15 days.
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