12 Fla. L. Weekly Supp. 990a
Insurance — Personal injury protection — Explanation of benefits — Insurer’s “non-compliance letter” which does not state reason for denial of charges is not sufficient as itemized specification of unpaid charges/EOB — Medical provider may maintain action for breach of contract for failure to furnish EOB — No merit to argument that provider cannot maintain action because it cannot establish damages where critical question in action is existence of breach of contract and damages, which may be nominal, are for jury to determine after determination of liability — Moreover, action seeks relief in form of specific performance, which does not require showing of damages
R.J. TRAPANA, M.D., P.A., a Florida Corporation (assignee of Saint-Ristal, Vanessa), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-07681 COSO 60. July 29, 2005. Sharon Zeller, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, North Miami.
THIS CAUSE came before the Court on July 29, 2005, for hearing on Plaintiff’s Motion for Summary Judgment (Count I — Breach of Contract — seeking itemized specification of unpaid charges), and the Court’s having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
Background: This is a P.I.P. case. Count I of Plaintiff’s complaint seeks claim information pursuant to Florida Statute s. 637.736(4)(b) — specifically, an itemized specification of unpaid charges (also known as an Explanation of Benefits or EOB). Alleging that it did not receive the required statement of the reasons for non-payment of its charges from Defendant, (and having not received a response to Plaintiff’s pre-suit demand letter requesting the information) the Plaintiff filed its Complaint against Defendant for Breach of Contract seeking an itemized specification of unpaid charges/Explanation of Benefits itemizing the charges received by Defendant from Plaintiff and detailing the reasons for non-payment. The gist of the Count at issue (Count I) is that the Defendant failed to provide the explanation of benefits required by Florida Statute §627.736(4)(b).
Defendant responds that it provided the Plaintiff with an itemized specification of unpaid charges in the form of a “non-compliance letter” quoting large portions of the P.I.P. statute and that the Plaintiff may not maintain this cause of action because: 1) no such cause of action exists and 2) it cannot establish damages.
CONCLUSIONS OF LAW
Does Defendant’s “Non-Compliance Letter”Constitute an Itemized Specification per F.S. s .627.736(4)(b?)
This Court and a number of other Broward County judges have addressed this issue and consistently ruled that the letter in question is NOT sufficient. In fact, in reviewing the evidence before the court, Defendant itself admits in deposition that the only notifications sent to Plaintiff were the “non-compliance” letters and effectively acknowledges that the letter is not a proper EOB:
Q: Is that an itemized specification of the unpaid charges submitted?
Does it list each CPT code?
A: No.
Q: Does it state why a particular CPT code is not being paid?
A: No, it doesn’t.
Q: Is it an explanation of benefits?
A: It states: We do not consider your correspondence notice of a covered loss or notice loss of attorney; it is basically talking about the countersignature.
The court agrees with the decision in Fidel S. Goldson D.C., P.A. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 161 (County Court, Broward County, Judge Robert W. Lee 2004) that “Under no reading of the word ‘specification’ does the language of the insured’s letters meet the requirements of the statute. Rather than “explicitly stating” the reason for the denial, the insured’s response to the claim does nothing more than confuse the matter even further.”
MAY PLAINTIFF MAINTAIN AN ACTION FOR BREACH OF CONTRACT FOR FAILURE TO PROVIDE ANITEMIZED SPECIFICATION OF CHARGES/EOB?
The appellate division of this circuit has twice affirmed that an assignee medical provider may maintain an action for breach of contract for failure to furnish an Explanation of Benefits. United Auto. Ins. Co. v. R.J. Trapana, M.D., P.A. (Decision of the Honorable Richard Eade) Circuit Court, Broward County (Appellate) 12 Fla. L. Weekly Supp. 452a (2005) Review Denied by 4th District Court of Appeal; United Auto. Ins. Co. v. Stat Technologies, Inc. (Unpublished Appellate Decision of Judge John Luzzo, Circuit Court, Broward County 2005). This court agrees that the provisions of the Florida Statutes governing insurance become part of the insurance contract between the parties, Grant v. State Farm Fire & Casualty Co., 638 So.2d 936, 938 (Fla. 1994); Mia A. Higginbotham, D.C., P.A. v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 748 (Broward Cty. Ct. 2004), and that accordingly the provision of Florida Statute s. 627.736(4)(b) requiring the insurer to furnish the claimant with an itemized specification of unpaid charges became part of the contract and a breach of contract action is proper. See Id.; See also, Goldson v. United Auto. Ins. Co. (Decision of Judge Robert Lee, Broward County Case # 03-7459 COSO 62) [12 Fla. L. Weekly Supp. 161b]; STAT Technologies, Inc. v. United Auto. Ins. Co. (Decision of Judge Lee Jay Seidman Broward County Case 02-01929 COSO 62); All Care Health & Wellness (Decision of Judge Sharon Zeller Broward County Case 03-3115 COSO 60). As a result, when the Defendant failed to comply with the mandatory provisions of Fla. Stat. §627.736(4)(b), it breached its insurance contract with the insured.
As to Defendant’s argument of damages, Plaintiff correctly asserts that the critical question is breach, see Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), and damages upon a determination of liability are for a jury, and may even be nominal. See Mia A. Higginbotham, D.C., P.A. v. United Auto. Ins. Co. (Decision of Judge Robert W. Lee Broward County Case 05-04557 COCE 53). More importantly, this action seeks relief in the form of specific performance (delivery of the information), which would not require a showing of damages. Accordingly, it is hereby
ORDERED AND ADJUDGED the Plaintiff’s Motion for Summary Judgment is GRANTED. Summary judgment is entered in favor of Plaintiff as to liability and at a minimum nominal damages on Count I of the Complaint. Moreover, as Defendant failed to provide the information until well after suit was filed, the Plaintiff is the prevailing party as to this count as well. Pursuant to Florida Statute 627.428, Plaintiff is entitled to recover from Defendant attorney’s fees and costs as to Count I in an amount to be determined at a later hearing, for which, the court reserves jurisdiction.
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