14 Fla. L. Weekly Supp. 1161a
Insurance — Personal injury protection — Complaint — No merit to claim that separate counts alleging breach of contract for failure to pay amounts owed, provide explanation of benefits, provide declarations page, and provide copy of policy are repetitive and must be pled as single count — Argument that counts alleging failure to provide EOB and copy of policy do not allege causes of action permitting the injunctive relief sought by plaintiff also fails — Motion to dismiss is denied
RONALD J. TRAPANA, M.D., P.A. (a/a/o Annquette Mann), Plaintiff, vs. UNITED AUTOMOBILE INS. CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-002951 COSO 61. September 12, 2007. Arlene Joy Simon, Judge. Counsel: Russel M. Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Gregory J. Blackburn, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This action came before the Court on Defendant’s Motion to Dismiss, and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon ordered and adjudged as follows:Factual Findings
1. Plaintiff filed a four (4) count complaint for breach of contract, alleging the following: (a) Breach of Contract for Failure to Provide an Explanation of Benefits/Itemized Specification Per Section 627.736(4)(b), Florida Statutes; (b) Breach Of Contract for Failure to Provide Policy Declarations Page (Statement of Coverages); (c) Breach Of Contract For Failure To Provide Copy Of Policy; and (d) Alternative Count For Breach Of Contract For Failure To Pay Amounts Owed.
2. On July 2, 2007, the Defendant filed its Motion to Dismiss, arguing that “[s]eparate breaches of contract do not provide separate causes of action. . . ”, that is, the Plaintiff is not permitted to allege more than one (1) count of Breach of Contract (the final three being repetitive), thus requiring counts II, III and IV to be dismissed; and arguing that Counts I and III must be dismissed as Defendant alleges that the breach of contract count seeks injunctive relief but have not alleged any cause of action that would permit such injunctive relief.Conclusions of Law
Defendant’s Motion to Dismiss is hereby DENIED.
Defendant’s first argument, that Counts II, III and IV are repetitive, and must be pled as one Breach of Contract within Count I, is wholly without merit. Fl. R. Civ. Pro. 1.110(g) provides that:
(g) Joinder of Causes of Action; Consistency. A pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined. A party may also set forth 2 or more statements of a claim or defense alternatively, either in 1 count or defense or in separate counts or defenses. When 2 or more statements are made in the alternative and 1 of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of 1 or more of the alternative statements. A party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both. All pleadings shall be construed so as to do substantial justice.
(Emphasis added)
The right to plead in the alternative is well established in this State, and was recognized by the Florida Supreme Court as rooted in common law. Wood vs. Sinclair Refining Co., 73 So.2d 226 (Fla. 1954). In this case, the Plaintiff has plead in the alternative four (4) separate and distinct causes of action, all of which meet the requirements for pleading breach of contract (existence of a contract, a material breach and resulting damages).
Defendant’s second argument that Counts I and III fail to state a cause of action is equally unpersuasive.
Count I (Breach of Contract for Failure to Provide an Explanation of Benefits/Itemized Specification Per Section 627.736(4)(b), Florida Statutes) was specifically approved and authorized by the Broward Circuit Appellate Court in United Automobile Ins. Co. vs. R.J. Trapana, M.D., P.A. (a/a/o Dudley Mabout), 12 Fla. L. Weekly Supp. 452a (17th Judicial Circuit (Appellate), February 14, 2005). Judge Eade, in affirming the decision of the trial court granting summary judgment for the Plaintiff, held that the insurer’s statutory obligation to provide an itemized specification is clear (Florida Statute §627.736(4)(b)), and the failure to do so is a breach of its obligation entitling the Plaintiff to attorney’s fees and costs. As the subject Count is virtually identical to the Count in Trapana (a/a/o Mabout), this Court finds it is bound by the ruling, and will not dismiss the Count.
Defendant’s attempt to dismiss Count III (Breach Of Contract for Failure to Provide Copy of Policy), is similarly rejected by this Court. This Court finds that the Plaintiff has available to it an action for breach of contract when the Defendant fails to provide a copy of the insurance policy upon demand. The statutory obligation to provide a copy of the policy under Florida Statute §627.4137 is equally clear, and the allegation that the Defendant failed to provide a copy of the policy and that the Plaintiff was damaged is sufficiently plead to defeat the Defendant’s Motion to Dismiss.
Finally, this Court cites to a small sampling of Broward County cases permitting a cause of action for failure to provide an insurance policy:
Florida Orthopedic Center, P.A. v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 1234, 17th Judicial Circuit, Judge Lisa Trachman (2006); Scott M. Jablon, D.C. v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 643c 17th Judicial Circuit, Judge Robert W. Lee (2006); Integra Diagnostics (Shawn Umstead) v. Reliance National Indemnity, 8 Fla. L. Weekly Supp. 349c, 17th Judicial Circuit, Judge William Herring (2001); American Vehicle Insurance Company v. Florida Emergency Physicians Kang & Assoc., P.A.
