12 Fla. L. Weekly Supp. 991a
Insurance — Personal injury protection — Explanation of benefits — Because PIP statute requiring EOB has become part of PIP insurance contract, medical provider may maintain breach of contract action for failure to provide EOB, even if only nominal damages arise — Motion to dismiss denied
R.J. TRAPANA, M.D., P.A. (a/s/o Thomas Barker), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-2651 COSO 62. October 25, 2004. Robert W. Lee, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, North Miami, for Plaintiff. Kishasha B. Sharp, Coral Gables, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNT I
THIS CAUSE came before the Court on October 14, 2004 for hearing of the Defendant’s Motion to Dismiss Count I of the Complaint, and the Court’s having reviewed the Motion, Court file, and relevant legal authorities; having heard argument; and having been sufficiently advised in the premises, the Court hereby finds as follows:
Background.
On April 13, 2004, the Plaintiff filed its action for breach of contract against the Defendant. The Complaint sets forth two counts: (1) breach of contract for failure to provide an explanation of benefits; and (2) breach of contract for failure to pay amounts owed. The Plaintiff has moved for summary judgment as to Count I. The basis of Court I is an alleged violation of Florida law which requires a “PIP” insurer to provide an explanation of benefits to its insured when the insurer reduces, omits or declines to pay a benefit. Fla. Stat. §627.736(4)(b).
The Defendant claims that this count should be dismissed because it fails to state a cause of action. More specifically, the Defendant argues that the count as stated “does not create an additional cause of action, nor does it confer any additional rights upon the insured.” Additionally, the Defendant claims that the count attempts to improperly “create a penalty for failure to provide an explanation of benefits.”
Conclusions of Law.
Under Florida law, the provisions of the Florida Statutes governing insurance become part of the insurance contract between the parties. Grant v. State Farm Fire & Casualty Company, 638 So.2d 936, 938 (Fla. 1994); Mia A. Higginbotham, D.C., P.A. v. United Automobile Ins. Co., 11Fla. L. Weekly Supp. 673 (Broward Cty. Ct. 2004). As a result, Florida Statute §627.736(4)(b) has become part of the PIP insurance contract in the case. If an insurer fails to provide the required explanation of benefits, it is subjecting itself to an action for breach of contract.
The Defendant relies on the case of United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001). The Rodriguez case, however, is clearly distinguishable from the instant case. In Rodriguez, the Florida Supreme Court addressed the issue of whether an insurer loses the right to contest a medical bill when the insurer fails to timely challenge it. Id. at 87. In such a case, the Supreme Court concluded that the only “penalties” available to the claimant were interest and attorneys’ fees. Id. The Rodriguez case involved a cause of action for failure to pay benefits. The cause of action at issue in the instant case, however, involves failure to provide the statutorily-required explanation of benefits. The Plaintiff is not seeking damages for the unpaid medical bill. Rather, the Plaintiff is seeking damages arising out of failure to provide the explanation of benefits. These are clearly two different things. The Plaintiff is entitled to recover under a contract theory for failure to provide the explanation of benefits, even if only nominal damages arise. Vangard Imaging, LLC v. Progressive Express Insurance Co., 11Fla. L. Weekly Supp. 933 (Broward Cty. Ct. 2004). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss Count I is DENIED. The Defendant shall file an Answer within 10 days or a default will be entered without further hearing.
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