15 Fla. L. Weekly Supp. 722a
Insurance — Personal injury protection — Explanation of benefits — Failure to provide EOB is material breach of PIP contract — Motion to dismiss counts claiming breach of contract and seeking declaratory relief regarding failure to provide EOB, policy, and declarations page are denied — Argument that medical provider failed to furnish disclosure and acknowledgment form, which is outside four corners of pleadings and relates to other dates of service, is not considered in ruling on motion to dismiss
ANGEL TAYLOR, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-23687 CC 23 (05). May 13, 2008. Lisa Walsh, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Miguel Chamorro, Pinkert Law Firm, P.A., Miami, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNTS I, II, IV AND V AND PLAINTIFF’S MOTIONTO WITHDRAW COUNT III WITH LEAVE TO AMEND
THIS CAUSE, came before the Court for hearing on April 23, 2008, and the court, having reviewed the Motion, the court file, legal authorities and having heard 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); 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.
Defendant seeks dismissal alleging that Plaintiff fails to state a proper cause of action because: 1) the failure to provide an explanation of benefits is not a material breach of the insurance contract and 2) that Plaintiff has suffered no damages as a result of any alleged breach.
Conclusions of Law:
Count I and II (EOB):
This Court follows its prior ruling in D. Abeckjerr, D.C., P.A. D/B/A Cloverleaf Chiropractic Clinic a/a/o Watson, Lottie v. United Auto. Ins. Co., case no. 07-15014 CC 23 [15 Fla. L. Weekly Supp. 621b], which followed the holdings of County and Circuit Court decisions permitting similar causes of action for breach of contract and declaratory relief where the insurer fails to provide the insured with a proper itemized specification of unpaid charges (commonly known as an Explanation of Benefits). See United Automobile Ins. Co. v. Trapana, M.D., P.A., 12 Fla. L. Weekly Supp. 452a (Fla. 17th Cir. Ct. Feb. 14, 2005); United Automobile Ins. Co. v. Stat Tech. Inc., 12 Fla. L. Weekly Supp. 840d (Fla. 17th Cir. Ct. April 12, 2005); County Line Chiropractic Center, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 1174a (Fla. Miami-Dade County Sept. 16, 2005).
The court finds that the provisions of Florida Law governing insurance contracts are incorporated into the contract of insurance and that failure to comply with them is a material breach. Moreover, damages are alleged in the complaint and all well-pled allegations of the complaint are taken as true for purposes of a motion to dismiss. The court notes Defendant’s argument that a letter was sent to Plaintiff asserting that the Plaintiff failed to comply with Florida Statute s. 627.736(5)(e) (Disclosure & Acknowledgment requirement) however, this argument is outside the four corners of the pleadings and attachments (and were the court to consider the document, it appears the document does not address the dates of service claimed by Plaintiff).
Count III (PIP LOG):
Plaintiff will withdraw count III and has leave to amend its count within 20 days of this order.
Counts IV and V (Policy/Dec. Page):
Court finds that there are causes of action for Policy and Declaration Page under both Breach of Contract and Declaratory Relief. This ruling does not preclude Defendant from bringing a summary judgment based on the factual allegations that surround the particular case.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is respectfully DENIED as to Counts I, II, IV and V without prejudice to raise a motion for summary judgment at a later date should facts warrant it and Plaintiff to amend count III within 20 days of this order.
