15 Fla. L. Weekly Supp. 280a
Insurance — Personal injury protection — Medical provider may state causes of action for breach of contract based on failure to provide explanation of benefits, declarations page and policy — Declaratory judgment — Claim for failure to provide PIP log pursuant to section 627.736(4)(b) states cause of action for declaratory relief
ATRIUM CHIROPRACTIC CENTER, INC. D/B/A WEST KENDALL CHIROPRACTIC, Florida Corporation (assignee of Sanchez, Teresa), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-19207 CC 23 (5). December 7, 2007. Don S. Cohn, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Karen Trefzger, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNTS I, II, III, IV AND V
THIS CAUSE, came before the court for hearing on November 14, 2007, 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); 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 its failure to provide pre-suit information to Plaintiff cannot amount to a material breach of contract and that Plaintiff fails to allege that it was damaged as a result of the breach. Defendant further contends 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].
This court only addressed Counts I, III and V in this hearing. Defendant requested that this court reserve ruling on Counts II and IV for 14 days from the date of the hearing to allow counsel to review case law that was provided by the Plaintiff in order to construct a possible counter argument. This court granted this request.
Conclusions of Law — as to the remaining counts:
Count I — Claims for Explanations of Benefits
This court agrees with the more than thirty-five (35) published decisions across the state which uniformly find that a Plaintiff may state a cause of action for breach of contract. See e.g. R.J. Trapana, M.D., P.A. (a/a/o Paolo D’Onofrio) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1019a (County Court, Broward 2006) (holding that an insurer must provide an EOB to an assignee medical provider — even if one was given to the insured). As to Defendant’s argument of damages, Plaintiff correctly asserts that the critical question is breach; see Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), and damages upon a determination of liability are for a jury, and may even be nominal. See Mia A. Higginbotham, D.C., P.A. v. United Auto. Ins. Co. (Decision of Judge Robert W. Lee, Broward County, Case 05-04557 COCE 53).
Count III — Claims for P.I.P. Log under Florida Statute s. 627.736(4)(b)
As to Plaintiff’s claim for a P.I.P. payout log pursuant to Florida Statute s. 627.736(4)(b) the court finds that Plaintiff states a cause of action for declaratory relief. Specifically, Florida Statute s. 627.736(4)(b) requires the insurer to provide the claimant with an “itemized specification” of the unpaid charges and a detail of the reasons for non-payment. Courts have interpreted this provision to require that the statement be “itemized” and intelligible. See, e.g., R.J. Trapana M.D., P.A. v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 99 (Decision of Judge Sharon Zeller, County Court, Broward County 2006); Miami Chiropractic Associates v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp 391 (Decision of Judge Robert Lee, County Court, Broward County 2005). In other words, the itemized specification or Explanation of Benefits (EOB) must provide an itemized and clear enough accounting of the claim for the claimant to determine each charge received and the reasons for non-payment of each. Absent the PIP log (detailing the application of deductible, order claims were processed, available benefits, etc.) the claimant is generally without a complete picture of the claim or “explanation of benefits.”
The court finds that while Southern Group denied the right to a P.I.P. log under F.S. s. 627.736(6)(d) (commonly referred to as “insurer’s right to information”), the Third District Court of Appeal’s opinion is narrowly tailored to restrict the insured’s (or his assignee’s) right to this information under F.S. 627.736(6)(d) ONLY. It does not address Plaintiff’s right to obtain this information through another section of F.S. 627.736. Florida Statute s. 627.736(4)(b) (entitling insured/claimant) to an explanation of benefits was not considered by the Southern Group decision and affords the claimant broader rights to information. Moreover, actions for declaratory relief are to be liberally allowed. See Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004). Based on the four-corners of the complaint, Plaintiff has stated a viable cause of action for declaratory relief. Barbado v. Green & Murphy, P.A., 758 So. 2d 1173 (Fla. 4th DCA 2000) (holding “[a] motion to dismiss tests the legal sufficiency of the complaint” and “[a] court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations”).
Count V — Claims for Policy and Declarations Page
This court 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 should be provided a copy of the insurance policy and declarations page if requested and may maintain a breach of contract action for failure to comply with this statutory obligation information specifically under F.S. §627.4137. See (for policy rationale), e.g., Integra Diagnostics v. Reliance Nat’l Ind., 8 Fla. L. Weekly Supp. 394c (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). See also Dade Injury Rehab. Ctr. (Jackson, Roshanda) v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 667a (County Court, Miami-Dade 2007) (holding Medical provider/assignee is entitled to copy of policy and declarations page pre-suit, even if one was provided to insured and finds that it is sound policy to encourage prospective litigants to be informed pre-suit to minimize needless and baseless filings).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED. Defendant shall respond to the complaint within 20 days.
