14 Fla. L. Weekly Supp. 932a
Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide PIP log on presuit request from insured — No error in entering summary judgment in favor of insurer in insured’s declaratory action seeking PIP log where there is nothing in record to suggest that insured is disputing that bill was correctly applied to deductible or that coverage has been exhausted, and insured received requested information in explanation of benefits forms
MARIA CATALINA OBANDO, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 05-98. L.C. Case No. 05-CC-2651. June 25, 2007. Appeal from the County Court for Orange County, Antoinette Plogstedt, Judge. Counsel: Bruce H. Kauffman, Law Offices of Peter A. Shapiro & Bruce H. Kauffman, P.A., Orlando, for Appellant. Doreen E. Lasch, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schaefer, P.A., Hollywood, for Appellee.
(Before GRINCEWICZ, DAWSON, and SPRINKEL, JJ.)
ORDER AFFIRMING SUMMARY JUDGMENT IN FAVOR OF APPELLEE
(PER CURIAM.) Appellant timely appeals the trial court’s order of final summary judgment against it. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A) and hereby dispenses with oral argument. See Fla. R. App. P. 9.320.
I. FACTS
The undisputed facts show that Appellant, Maria Catalina Obando, was injured in an automobile accident while covered under a policy issued by State Farm Fire and Casualty Company, Appellee. Appellant submitted bills for personal injury protection (hereinafter “PIP”) benefits under the policy; these were subsequently paid by Appellee. On January 4, 2005, Appellant’s attorney sent a demand letter requesting Appellee forward a copy of an updated PIP payout log (hereinafter “PIP log”) within thirty (30) days. After Appellee refused to forward its PIP log, Appellant filed a three count complaint for declaratory judgment, breach of contract and a violation of section 627.736(6)(d), Florida Statutes. In relevant part, each count sought an order requiring Appellee to produce its PIP log.
On August 5, 2005, Appellant filed an Amended Motion for Summary Judgment asserting that it was entitled to judgment as a matter of law because Appellee had confessed judgment by producing the requested PIP log after suit was filed. Appellee subsequently filed its own Motion for Summary Judgment on August 22, 2005. Prior to the hearing on the parties’ motions for summary judgment, Appellant withdrew her counts for breach of contract and violation of section 627.736(6)(d), Florida Statutes. On October 19, 2005, the trial court entered a final summary judgment in favor of Appellee finding that section 627.736(6), Florida Statutes, did not refer to any document or information as a PIP log or its equivalent and, in any event, Appellant “had already received individual Explanation of Benefits (hereinafter “EOB”) detailing payments made under the policy.” (R. 129, 132.) This appeal followed.
II. STANDARD OF REVIEW
This appeal comes to this Court from a final summary judgment. When reviewing a final summary judgment this Court’s standard of review is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Kaplan v. Morse, 870 So. 2d 934, 935 (Fla. 5th DCA 2004). A party is not entitled to summary judgment unless there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. It is the moving party’s burden to conclusively establish that there is no dispute as to any material fact. Kaplan v. Morse, 870 So. 2d at 935. Unless “the facts are so crystallized that nothing remains but questions of law,” summary judgment should not be granted. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).
III. DISCUSSION
Appellant argues that the trial court erred in granting summary judgment in favor of Appellee based on the fact that Appellant received EOBs. Appellant argues that equity requires Appellee to produce its PIP log upon receiving a pre-suit demand, pointing to a myriad of county court cases and a few circuit court appellate cases. Appellant also argues that not requiring Appellee to produce the PIP log contravenes public policy, the spirit of the PIP statute and the intent of the legislature by frustrating the duty of cooperation an insurer owes to its insured, while promoting unnecessary litigation.1 Appellant also contends that Appellee confessed judgment by producing its PIP log after suit was filed.2
Appellee argues that there is no language in section 627.736(6), Florida Statutes (hereinafter “Statute”) that requires it to produce a PIP log at the request of an insured in a pre-suit demand letter. According to Appellee, sections 627.736(6)(a) and (b), Florida Statutes, clearly and unequivocally set forth the information it is required to share with its insured. Consequently, requiring it to produce a PIP payout log would impermissibly add terms not contained in the Statute.
In reaching its ruling, the trial court relied on New Hampshire Indemnity Insurance Co. v. Rural Metro Ambulance, 13 Fla. L. Weekly Supp. 573a (Fla. 18th Cir. Ct. Nov. 18, 2005). In this case, the insured’s assignee submitted a bill which the insurer did not pay. Id. The assignee subsequently requested a copy of the insurance policy, declarations page, and PIP payout log, citing sections 627.4137 and 627.736(6)(d), Florida Statutes, as authority. Id. The insurer responded by indicating that the policy’s benefits were exhausted and did not provide any of the information requested in the letter. Id. The trial court awarded summary judgment in favor of the assignee finding it was entitled to the pre-suit information it requested. Id. Although affirming the trial court, the appellate court specifically found that there was no language in the Statute that entitled an insured or assignee to a copy of the PIP payout log. Id. The court also noted that the Statute did not even require an insured to “create or keep a PIP log at all.” Id. Instead, the court concluded that public policy and the purpose of the PIP statutes required an insurer to provide “the information that would otherwise be compiled in a PIP log” to its insured or insured’s assignee. Id.
During the pendency of the instant appeal, this Court issued its opinion in American Vehicle Insurance Co. v. Florida Emergency Physicians Kang & Associates, P.A., 14 Fla. L. Weekly Supp. 352a (Fla. 9th Cir. Ct. Jan. 26, 2007). This case involved an insurer’s refusal to pay a bill submitted by the insured’s assignee on the basis that it was applied to the deductible. Id. The insurer also refused to produce a copy of its PIP payout sheet. Id. The assignee subsequently filed suit seeking declaratory relief and a judgment for PIP benefits. Id. The trial court awarded summary judgment in favor of the assignee concluding that sections 627.4137, 627.736(6)(d), and 627.7401, Florida Statutes, required the production of the requested information. Id. The Court, in relevant part, affirmed the trial court and held that section 627.736(6)(d), Florida Statutes, imposes a pre-suit duty of disclosure “encompass[ing] all information obtained from medical providers including compilations and summaries of such information in the form of a PIP log, PIP ledger or similar document.” Id.
In the case at bar, the trial court concluded that the Statute did not vest the Appellant with any right to receive the PIP payout log. If this were the sole basis of the trial court’s ruling, this Court would be compelled to reverse on the authority of American Vehicle Insurance Co. v. Florida Emergency Physicians Kang & Associates, P.A., 14 Fla. L. Weekly Supp. 352a. However, the trial court also concluded that Appellant received all EOBs from Appellee detailing the payments made under the policy. This conclusion was based on Appellant’s definition of a PIP log as “ ‘a listing of all payments made under the PIP coverage of the policy’ ” and her own deposition testimony where she stated that she received EOBs indicating what bills were submitted and paid by Appellee in connection with the treatment received for her injuries.3 (R. 132; Obando Dep. 11-12, 15-16.) It is apparent that the trial court concluded that Appellant’s receipt of the EOBs contained the same or equivalent information contained in a PIP log.
Appellant argues that this finding was erroneous because an EOB does not contain the same information as a PIP log. According to Appellant, an EOB is simply a receipt showing a specific transaction or payment distributing available PIP benefits. A PIP log, on the other hand, indicates the date the insured incurred a claim for PIP benefits, the amount of the bill, the date the insurer received the bill, whether the insurer made or denied payment, as well as the date and amount of payment by the insurer. Appellant cites no controlling or even persuasive authority to support her definition of a “PIP log.” The Florida Statutes do not define this term. In fact, a “PIP log” is an industry term referring “to a wide array of auditing tools ranging from a simple compilation of checks disbursed, to a detailed analysis of all claims made, including the date(s) received, amount(s) claimed, amount(s) and date(s) paid, and explanations of benefits for every claim denied, reduced or pending.” Preziosi West/East Orlando Chiropractic Clinic, P.A. v. Mercury Ins. Co. of Fla., 12 Fla. L. Weekly Supp. 993b (Fla. Seminole Cty Ct. July 28, 2005).
Furthermore, this definition was not proffered to the trial court and rather starkly contrasts to the one set forth in Appellant’s Amended Complaint: “a listing of all payments made under the PIP coverage of the Policy.” (R. 23.) In light of the Amended Complaint’s definition of a PIP log and the undisputed fact that Appellant received the EOBs containing this information, it appears that Appellant was provided with the equivalent information in the PIP log. See Am. Vehicle Ins. Co. v. Fla. Emergency Physicians Kang & Assoc., P.A., 14 Fla. L. Weekly Supp. 352a (insurer must produce information contained in a PIP log or similar document). Assuming arguendo that the EOBs did not contain the equivalent information as a PIP log, reversal of the trial court is still not warranted.
As set forth in the Amended Complaint, Appellant sought declaratory relief based on Appellee’s refusal to provide a PIP log so that she could “ascertain whether the medical bills, loss wages, transportation expenses and/or household expenses submitted to Defendant were properly paid and/or applied to any applicable deductible and to see if benefits were still remaining.” (R. 23.) In stark contrast to what was pled, Appellant admitted that Appellee made payments as required by the policy and never refused to pay for any medical services rendered.4 Appellant also stated that she did not know of any amount owed by Appellee to her or her medical providers.5 When asked why she filed suit, Appellant stated, “That I would like for future accidents, for my attorney to have the papers of the bills that the insurance has paid.” (Obando Dep. 14-15.) Appellant also admitted to receiving all EOBs showing that her doctors were paid.
Other than Appellant’s claimed need for the PIP log, the record reflects an absence of any dispute over the payment or non-payment of a submitted claim. There is also nothing in the record to suggest that Appellant is disputing that a bill was correctly applied to the deductible or disputing that coverage has been exhausted. As discussed above, Appellant received the information she requested in the form of the EOBs. Without a present, cognizable dispute, it is simply inappropriate to render a declaratory judgment. See Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, 661 So. 2d 1190, 1192-93 (Fla. 1995) (quoting Labella v. Food Fair, Inc., 406 So. 2d 1216, 1217 (Fla. 3d DCA 1981) (inappropriate to render a declaratory judgment where the requesting party shows only a possibility of legal injury based on a hypothetical set of facts which are contingent upon future events)); see also Am. Indem. Co. v. S. Credit Acceptance, Inc., 147 So. 2d 10, 11 (Fla. 3d DCA 1962) (declaratory relief not available when based on events that may or may not occur).
IV. MOTIONS FOR ATTORNEY’S FEES
The parties have filed cross motions for attorney’s fees. Appellant seeks prevailing party attorney’s fees pursuant to sections 627.428 and 627.736, Florida Statutes, if this Court rules in her favor. Appellee seeks attorney’s fees on the basis that it sent Appellant an offer of judgment pursuant to section 768.79, Florida Statutes and Florida Rule of Civil Procedure 1.442, the offer was rejected, and it subsequently prevailed in the lower court. As more fully set forth below, both motions must be denied.
Appellant’s attorney’s fees motion is denied because she is not the prevailing party. Appellee’s motion for attorney’s fees is also denied because this appeal only involved a declaratory judgment cause of action. A declaratory judgment cause of action is not a civil action for damages and thus, attorney’s fees may not be awarded pursuant to section 768.79, Florida Statutes. Nat’l Indem. Co. of the S. v. Consol. Ins. Servs., 778 So. 2d 404, 408 (Fla. 4th DCA 2001) (section 768.69, Florida Statutes, requires a civil action for damages in order for attorney’s fees to be awarded).
Accordingly, it is hereby ORDERED and ADJUDGED that the trial court’s October 18, 2005, “Order Granting Defendant’s Motion for summary Judgment and denying Plaintiff’s Motion for Summary Judgment,” is AFFIRMED.
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1Appellant’s duty of cooperation argument appears to be based on section 626.9541(1)(i)(3)(c), Florida Statutes. This argument was never raised in front of the trial court and may not be considered for the first time on appeal. Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981).
2In light of this Court’s decision, set forth below, this argument will not be addressed.
3Q: Did your insurance company or State Farm provide you with an explanation of your benefits in regards to what was being paid in regards to your medical treatment provided?
A: Yes.
Q: And was there ever an amount that was denied by State Farm in regards to your medical treatment?
A: No.
….
Q: Didn’t you testify that the insurance company sent you an explanation of the benefits of what was paid to your providers?
A: That’s correct.
Q: That’s what?
A: That’s correct, that it came to me, to my house.
Q: So you did receive a copy of the bills that were paid by the insurance company?
A: Yes. I received a letter from State Farm telling me what State Farm has paid. But I don’t know if the doctors have that or not.
….
Q: And did the Explanation of Benefits advise you that those doctors had been paid?
A: Yes.
(Obando Dep. 11-12, 15-16.)
4Q: Did Dr. Craig’s office ever advise you that your insurance company was not paying for the treatment that was being rendered to you?
A: No.
Q: Did you ever get any correspondence from your insurance company, advising that they would not be paying for the treatment that they were rendering to you?
A: No.
Q: Are you aware of any outstanding amount for medical treatment, that you received as a result of this motor vehicle accident, that has not been paid by your insurance company?
A: No.
(Obando Dep. 10.)
5Q: Is there any amount that you believe that State Farm owes either to you or to your medical providers?
A: I do not know.
(Obando Dep. 11.)
