15 Fla. L. Weekly Supp. 179a
Insurance — Personal injury protection — Explanation of benefits — Failure to provide EOB may give rise to breach of contract claim — Declaratory judgment — Claim for declaratory relief for failure to provide EOB dismissed — Insurer’s obligation to provide policy, declarations page and/or PIP log on presuit request from assignee/medical provider — Despite case law determining that claimant is not entitled to PIP log under section 627.736(6)(d), question of whether claimant is entitled to log under section 627.736(4)(b) remains open and is proper subject for declaratory relief — Complaint states proper cause of action for breach of contract and declaratory relief for failure to provide declarations page and policy
ALL CARE HEALTH AND WELLNESS CENTERS, P.A., a Florida Corporation (assignee of Duterville, Andre), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-20275 CC 23 (04). November 6, 2007. Eric Wm. Hendon, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Nina Dubey, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNTS I, III, IV AND V AND GRANTING MOTION TO DISMISS COUNT II WITH LEAVE TO AMEND
THIS CAUSE, came before the court for hearing on October 19, 2007, and the court, having reviewed the Motion, legal authorities and having entertained argument of counsel, finds as follows:
Factual Background:This is a multi-count P.I.P. case. Counts I and II claim breach of contract and declaratory relief for failure to provide an Explanation of Benefits (commonly known as an “EOB”) pursuant to F.S. 627.736(4)(b); Count III is a claim for declaratory relief for failure to provide a P.I.P. payout log, or “PIP log”, pursuant to F.S. 627.736(4)(b); Counts IV and V seek declaratory relief and breach of contract for failure to provide a copy of the policy of insurance and the policy declarations page pursuant to F.S. 627.736 and/or 627.4137; Count VI is a claim for breach of contract for failure to provide P.I.P. benefits. Defendant alleges in its Motion to Dismiss that the above do not constitute viable causes of action and that any failure to provide pre-suit information to Plaintiff cannot amount to a material breach of contract. Defendant further alleges that Plaintiff fails to plead that it was damaged as a result of the breach. As to Plaintiff’s claim for Declaratory Relief regarding the right to a P.I.P. log, Defendant asserts that Plaintiff cannot state a cause of action for declaratory relief for failure to provide a P.I.P. log in light of the Third District Court of Appeal’s recent decision in Southern Group Indem., Inc. v. Humanitary Health Care, Inc., No. 3D06-2788 (Fla. 3rd D.C.A., 2007) [32 Fla. L. Weekly D1396a]. Addressing each count in turn, the court finds as follows:
Counts I & II (Breach of Contract & Declaratory Relief Regarding Explanation of Benefits)
Addressing the Breach of Contract Count, the Court finds that a claimant may state a claim for breach of contract for failure to furnish an explanation of benefits pursuant to Florida Statute s. 627.736(4)(b) and that Plaintiff’s claim for damages is adequately stated. United Auto. Ins. Co. v. R.J. Trapana, M.D., P.A. (Decision of the Honorable Richard Eade) Circuit Court, Broward County (Appellate), 12 Fla. L. Weekly Supp. 452a (2005) Review Denied by 4th District Court of Appeal; United Auto. Ins. Co. v. Stat Technologies, Inc., 12 Fla. L. Weekly Supp. 840d (Decision of Judge John Luzzo (Appellate), Circuit Court, Broward County 2005). To the extent that Defendant seeks greater specificity, this issue may be ascertained through discovery.
As to the claim for Declaratory Relief regarding the explanation of benefits, the court agrees with the Defendant as to the pleading of this count and grants the Defendant’s motion to dismiss as to Count II. Plaintiff is granted leave to amend this count within 10 days of this order.
Count III (Claim for PIP Log Pursuant to Florida Statute s. 627.736(4)(b))
Defendant seeks dismissal of Plaintiff’s claim for declaratory relief regarding Plaintiff’s right to a PIP log under Florida Statute s. 627.736(4)(b), asserting that the case of Southern Group Indemnity Inc. v. Humanitary Health Care, Inc. has resolved any doubt that the Plaintiff might have as to its right to a PIP log. Defendant seems to focus on the question — “What’s the doubt?” However, the Third District’s decision in Humanitary Health Care was narrowly tailored and addressed only the question of whether a claimant is entitled to a PIP log under Florida Statute s. 627.736(6)(d) (commonly referred to as “insurer’s right to information”), and did not address entitlement to relief under any other statute — namely Florida Statute s. 627.736(4)(b). The question of whether a claimant is entitled to a PIP log under Florida Statute s. 627.736(4)(b) remains open and is a proper subject for declaratory relief.
Counts IV and V (Regarding Right to Policy and Declarations Page/Statement of Coverages)
This court denies the Defendant’s Motion to Dismiss as to Counts IV and V (breach of contract and declaratory relief regarding right to a copy of the Policy/statement of coverages under Florida Statute s. 627.4137). The court finds that the complaint states a proper cause of action under both a breach of contract and declaratory relief and agrees with the reasoning of the overwhelming majority of county and circuit courts that have considered the issue and finds that an assignee medical provider may maintain an action for a copy of the insurance policy and policy declarations page. See, e.g., Integra Diagnostics v. Reliance Nat’l Ind., 8 Fla. L. Weekly Supp. 349c (County Court, Broward 2001); Florida Orthopedic Center, P.A. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1234 (County Court, Broward 2006); Scott M. Jablon, D.C. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 643c (County Court, Broward 2006); American Vehicle Ins. Co. v. Florida Emergency Physicians Kang & Assoc., P.A., 13 Fla. L. Weekly Supp. 973 (18th Circuit Appellate 2006); ROM Diagnostics v. Security Nat’l Ins. Co., 9 Fla. L. Weekly Supp. 323b (County Court, Orange 2002); Rural Metro Ambulance v. Liberty Mut. Ins. Co., 11 Fla. L. Weekly Supp. 69a (County Court, Broward 2003); Palm Beach Regional MRI v. Southern Group Ind. Co., 11 Fla. L. Weekly Supp. 742a (County Court, Palm Beach 2004); Florida Emergency Physicians Kang & Assoc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 805b (County Court, Seminole 2005); Florida Emergency Physicians Kang & Assoc. v. American Vehicle Ins. Co., 12 Fla. L. Weekly Supp. 774c (County Court, Orange 2005); Florida Emergency Physicians Kang & Assoc. v. American Vehicle Ins. Co., 12 Fla. L. Weekly Supp. 478b (County Court, Orange 2005). The policy is sound and discourages needless litigation. Moreover, an insurer cannot rightly demand strict compliance with policy conditions on one hand and then refuse to furnish the policy (so that the claimant can determine his/her rights and obligations) on the other.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED. Defendant shall respond to the complaint within 20 days.
