13 Fla. L. Weekly Supp. 1093b
Insurance — Personal injury protection — Explanation of benefits — Non-compliance letter does not satisfy requirement for EOB — Because statutory requirement that insurer furnish claimant with EOB became part of insurance contract, finding of breach of contract action is proper where insurer has failed to provide EOB to medical provider/assignee — Attorney’s fees and costs awarded to provider
DADE INJURY REHABILITATION CENTER, a Florida Corporation (assignee of Johanna Gonzalez), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-010251 COCE 52. April 15, 2005. Jay S. Spechler, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, North Miami, for Plaintiff. Thomas Freehling.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO COUNT I OF AMENDED COMPLAINT (BREACH OF CONTRACT SEEKING ITEMIZEDSPECIFICATION OF UNPAID CHARGES/EOB)
THIS CAUSE came before the Court on April 7, 2005 for hearing on Plaintiff’s Motion for Summary Judgment (Count I — Breach of Contract seeking itemized specification of unpaid charges/EOB), 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:On or about June 03, 2003, having not received from Defendant the required statement of the reasons for non-payment of its charges, 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 Count I is that the Defendant failed to provide the explanation of benefits required by Florida Statute §627.736(4)(b).
Defendant has presented no record evidence showing that it furnished the required itemized specification. The only item offered by Defendant as its purported itemized specification isa form letter identified by Defendant as a “non-compliance letter” and a PIP payout sheet that was not furnished to Plaintiff. The court has reviewed this letter and finds that it does not meet the requirements of Florida Statute s. 627.736(4)(b). This position is supported by the decisions of at least three other Broward County Court judges who reached the same conclusion regarding this exact form letter. See MANDELL CHIROPRACTIC AND REHABILITATION CENTRE (a/a/o James, Roosevelt), v. UNITED AUTO. INS. CO., 12 Fla. L. Weekly Supp. 396a (Broward County Case No. 04-09672 COCE 53. September 29, 2004. Hon. William Herring); MIAMI CHIROPRACTIC ASSOCIATES (a/a/o Fernando Monch) v. UNITED AUTO. INS. CO., 12 Fla. L. Weekly Supp. 391 (Broward County. Case No. 03-02261 COSO (62). January 20, 2005. Hon. Robert W. Lee); FIDEL S. GOLDSON, D.C., P.A. (a/s/o John Gray) v. UNITED AUTO. INS. CO., 12 Fla. L. Weekly Supp. 161b (Broward County. Case No. 03-7459 COSO 62. November 18, 2004. Hon. Robert W. Lee); ALL CARE HEALTH & WELLNESS, INC. a/a/o Monique Henry v. UNITED AUTO. INS. CO., 11 Fla. L. Weekly Supp. 935a (Broward County. Case No. 03-03115 COSO 60. July 26, 2004. Hon. Sharon Zeller).
In fact, Defendant’s own adjuster testified in deposition as follows when asked about whether it provided the required itemized specification to Plaintiff:
Q: After having received the medical billing and received the demand letter from C&A Billing did United Automobile eve issue an explanation of benefits?
A: No.
Q: After your review of the file was there any indication as to why no EOB was issued.
A: No. My file didn’t reflect anything that I can recall, recollect off the best of my memory. In the notes I didn’t locate any documentation in any file.
Additionally, in response to Plaintiff’s request for admissions Defendant expressly denies furnishing an EOB (See Defendant’s Response to Plaintiff’s Request for Admissions Questions # 25-30).
Conclusions of Law:The Plaintiff is correct 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 Goldson v. United Auto. Ins. Co. (Decision of Judge Robert Lee, Broward County case # 03-7459 COSO 62); 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), and failed to respond to Plaintiff’s pre-suit demand letter specifically requesting this information, it breached its insurance contract with the insured and Plaintiff, as the assignee of those rights was entitled to bring suit to enforce the statutory and contractual right to an itemized statement of the reasons for non-payment. This position is not only grounded in law as set forth by the appellate division of this circuit, see R.J. Trapana, M.D., P.A. (a/a/o Dudley Mabout) v. United Auto. Ins. Co. (Broward County Circuit Appellate Case # 03-22360 — Decision of the Honorable Richard Eade 2005), but makes perfect sense on public policy grounds. Simply put, years of litigation may easily be avoided if the insurer simply provides the claimants with the required itemized explanation of the reasons for non-payment so that all parties involved know their relative positions before the court’s time is needlessly expended.
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. Count II remains at issue to be tried.
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