13 Fla. L. Weekly Supp. 1033a
Insurance — Personal injury protection — Dispute between insured and insurer — Error to dismiss insured’s complaint as insufficiently pled where it is undisputed that valid contract of insurance existed, insured alleged in complaint that insurer that issued check payable only to medical provider after receipt of revocation of assignment of benefits failed to pay correct amount of money to correct claimant, in violation of contract and PIP statute, and insured alleged that he suffered damages as result of insurer’s breach — No merit to argument that revocation which revokes assignment of benefits but does not apply to any prior authorization for direct payment is confusing — There is clear distinction between assignment of benefits and direct payment authorization, and no such authorization appears on record — Error to dismiss complaint for failure to state cause of action while at same time granting partial relief under complaint by ordering insurer to reissue check in insured’s name — Attorney’s fees — Appellate — Insured is entitled to attorney’s fees for work done on initial and reply brief, but not for work done on unsuccessful cross-appeal seeking striking of order to re-issue check
JOHN NICHOLAS, Appellant/Cross-Appellee, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee/Cross-Appellant. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2005-AP-15-XXXX-MA, Division CV-G. July 13, 2006. Appeal and cross-appeal from the County Court in and for Duval County, Division M. Counsel: James J. Woodruff, II, D. Scott Craig, and David Candelaria, The Woodruff Law Firm, P.L., Atlantic Beach, for Appellant/Cross-Appellee. Valeria Hendricks, Davis & Harmon, P.A., Tampa, for Appellee/Cross-Appellant.
OPINION
(JEAN M. JOHNSON, J.) This cause came before this Court on February 25, 2005, upon the Notice of Appeal timely filed by Appellant/Cross-Appellee, John Nicholas. This Court has jurisdiction pursuant to Article V, Section 5(b), Florida Constitution, section 26.012(1), Florida Statutes (2004), and Florida Rule of Appellate Procedure 9.030(c)(1)(A). This Court has considered the Initial Brief and accompanying Application for Attorney’s Fees and Application for Oral Argument, the Answer Brief and Initial Brief on Cross-Appeal, the Reply Brief of Appellant and Answer to Appellee’s Initial Cross-Appeal Brief and accompanying Application for Attorney’s Fees and Application for Oral Argument, the Record on Appeal, and relevant authority.
I. Factual Background and Procedural History
John Nicholas, the Appellant/Cross-Appellee (“Appellant”) in this case, entered into an automobile insurance contract with Progressive Express Insurance Company, the Appellee/CrossAppellant (“Appellee”). The insurance contract included no-fault benefits, as required by section 627.736, Florida Statutes. Following an accident, the Appellant was treated at Orthopaedic Rehab Speciality Clinic (“ORSC”) for personal injuries covered by the insurance contract. ORSC, on behalf of the Appellant, timely and properly submitted to the Appellee a notice of initiation of treatment and bills for the medical treatment rendered to the Appellant. The Appellee paid for most of the medical care, with the exception of the treatment rendered on June 17, 2003, and June 18, 2003.
On October 27, 2004, the Appellant sent the Appellee a letter demanding payment for the medical treatment received on June 17, 2003, and June 18, 2003. The letter specified that it was filed on behalf of the Appellant, John Nicholas, seeking payment for charges submitted by ORSC. A Mutual Revocation of Assignment of Benefits, attached to the letter, specified that the Appellant and ORSC mutually revoked any assignment of benefits which may have been made. The revocation was to apply to all future treatment and all past treatment for which full payment had not been rendered by the Appellee. However, the Mutual Revocation specified that it did not apply to any prior authorizations to the Appellee to pay personal injury protection benefits directly to ORSC. In response to the demand letter, the Appellee submitted a draft in the amount of one hundred eighty-seven dollars and nine cents ($187.09), payable to “ORSC only.”
On December 1, 2004, the Appellant filed a complaint against the Appellee. On January 24, 2005, the Appellee filed a Motion to Dismiss, arguing that the Appellant failed to allege a cause of action. On February 18, 2005, following oral arguments, the County Court issued an Order granting the Motion to Dismiss, but directing the Appellee to reissue the November 2004 check, for the same amount, to the Appellant. The Appellant filed a Notice of Appeal on February 24, 2005. The Initial Brief was filed on April 29, 2005, accompanied by an Application for Attorney’s Fees and an Application for Oral Argument. The Appellee filed an Answer Brief and Initial Brief on Cross-Appeal on July 13, 2005. The Appellant filed a Reply Brief and Answer to Appellee’s Initial Cross-Appeal Brief, accompanied by an Application for Attorney’s Fees and an Application for Oral Argument on August 18, 2005.
II. Appeal and Cross-Appeal
A. Standard of Review
“Whether a complaint should be dismissed is a question of law. On appeal of a judgment granting a motion to dismiss, the standard of review is de novo.” City of Gainesville v. State, Dep’t of Transp., 778 So. 2d 519, 522 (Fla. 1st DCA 2001). The review is limited to the four corners of the complaint, and the reviewing court must “assume the truth of a complaint’s well-pleaded factual allegations when deciding whether dismissal of the complaint was proper.” State, Dep’t of Ins. v. First Floridian Auto & Home Ins. Co., 803 So. 2d 771, 773 (Fla. 1st DCA 2002).
B. Application of Standard of Review to Appellant’s Claims and Appellee’s Cross-Claims
Appellant raises two issues in the Initial Brief: (1) whether the trial court erred in dismissing the Complaint as insufficiently pled, and (2) whether the trial court erred by granting the Appellee’s Motion to Dismiss while partially granting the Appellant the relief sought under the Complaint.
To state a claim for breach of contract, the claimant must allege (1) the existence of a contract; (2) a material breach; and (3) damages flowing from the breach. Knowles v. C.I.T. Corp., 346 So. 2d 1042, 1043 (Fla. 1st DCA 1977). This Court finds that the Appellant has made sufficient allegations to establish a cause of action for breach of contract. First, it is undisputed that a valid contract for automobile insurance existed. Second, the Appellant alleged in the Complaint that the Appellee failed to pay the correct amount of money to the correct claimant, in violation of the contractual terms and section 627.736(11)(d), Florida Statutes (2004). Although the Appellee argues that the “Mutual Revocation of Assignment of Benefits” is confusing, this Court finds that there is a clear distinction between an assignment of benefits and an authorization from the Appellant, allowing the Appellee to pay medical providers directly. In addition, this Court notes that no such authorization appears on the record. Third, the Appellant alleged that he suffered damages as a result of the Appellee’s breach.
As to the second issue raised by the Appellant in the Initial Brief, this Court finds that the trial court cannot dismiss the Complaint for failure to state a cause of action while at the same time granting the Appellant partial relief under that same Complaint.
The Appellee has also filed an Initial Brief on Cross-Appeal, arguing that the trial court erred in directing the re-issuing of the check in the Appellant’s name, because the record did not establish that the benefits had to be paid to the Appellant directly. Accordingly, the Appellee asks that the provision for the re-issuing of the check be stricken. This Court finds that the provision at issue should be stricken, but not for the reasons argued by the Appellee. As discussed above, the trial court erred in granting the Appellant partial relief while dismissing his Complaint for failure to state a cause of action.
III. Appellant’s Application for Attorneys’ Fees
The Appellant has filed two Applications for Attorneys’ Fees: one accompanied the Initial Brief filed on April 29, 2005, and the other accompanied the Appellant’s Reply Brief and Answer to Appellee’s Initial Cross-Appeal Brief, filed on August 18, 2005. The Applications were filed pursuant to Florida Rule of Civil Procedure 9.400 and section 627.428, Florida Statutes (2004).
This Court finds that the Appellant is entitled to appellate attorneys’ fees for work done on the Initial Brief and the Reply Brief. However, the Appellant did not prevail on cross-appeal, and therefore is not entitled to appellate attorneys’ fees for work done on the Answer to Appellee’s Initial Cross-Appeal Brief. Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398, 400 (Fla. 1st DCA 1984). This Court notes that the Appellant’s positions in the Initial Brief and the Answer to Appellee’s Initial Cross-Appeal Brief are inconsistent. In the Initial Brief, the Appellant argues that the trial court erred in granting the motion to dismiss and also erred in dismissing the Complaint while granting partial relief under the same Complaint. The Appellant requests reversal of the Order issued by the trial court. However, in the Answer to the Appellee’s cross-appeal, the Appellant argues that the provision granting him partial relief should not be reversed.
In view of the above, it is:
ORDERED AND ADJUDGED as follows:
1. That the trial court’s Order on Defendant’s Motion to Dismiss is hereby REVERSED.
2. That the Appellant’s Application for Attorney’s Fees for work done on the Initial Brief and the Reply Brief is hereby GRANTED.
3. That the Appellant’s Application for Attorney’s Fees for work done on the Answer to Appellee’s Initial Cross-Appeal Brief is hereby DENIED.
4. That the Appellant’s Applications for Oral Argument are hereby DENIED.
5. This case is hereby REMANDED to the trial court for proceedings consistent with this Opinion.
