15 Fla. L. Weekly Supp. 1205a

Insurance — Personal injury protection — Explanation of benefits — Failure to provide — Medical provider is entitled to award of nominal damages as result of insurer’s failure to provide EOB — Trial court also finds that provider suffered actual damages

D. ABECKJERR, D.C., P.A. D/B/A CLOVERLEAF CHIROPRACTIC CLINIC, a Florida Corporation (assignee of Wiggins, Yvonne), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-23677 CC 23 (04). October 10, 2008. Eric Wm. Hendon, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Karen Trefzger, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AS TO COUNT I OF COMPLAINT (re: Breach of Contract for Failure to Provide an EOB)

THIS CAUSE came before the Court on hearing on Plaintiff’s Motion for Final Summary Judgment as to Count I (Breach of Contract regarding itemized specification of unpaid charges), and the Court’s having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:

Background:This is a multi-count P.I.P. case. Count I of Plaintiff’s Complaint pleads that Defendant breached its insurance contract by failing to provide Plaintiff with a legally compliant “itemized specification” of the unpaid charges (commonly known as an “Explanation of Benefits” or “EOB”). On September 8, 2008, this Court expressly found liability based upon the Defendant’s failure to provide Plaintiff with an EOB pursuant to F.S. s. 627.736(4)(b). The proper record evidence before the Court relative to liability was undisputed. The only issue that was to be resolved was the element of damages, where it is Plaintiff’s contention that nominal damages are to be presumed upon the encroachment of an established right. Defendant contends that Plaintiff failed to prove the element of damages.

Conclusions of Law. The Plaintiff is correct that an award of nominal damages is presumed from an encroachment upon on established right. Ault v. Lohr, 538 So. 2d 454 (Fla. 1989) (holding in “approving an award of punitive damages upon an express finding of liability by the factfinder, we accept the view that nominal damages will be presumed from an encroachment upon an established right.”).

The court finds here, that Defendant’s breach of contract for its failure to provide an EOB pursuant to F.S. s. 627.736(4)(b) results, at the very least, to an entitlement to nominal damages and Plaintiff has met the requisite burden to show that it is entitled to nominal damages as a result of Defendant’s failure to provide Plaintiff with an EOB.

With regard to the Motion for Partial Summary Judgment as to Plaintiff’s claim for nominal damages for breach of contract incurred as a result of Defendant’s failure to respond to Plaintiff’s request for an EOB, the court agrees with the reasoning of the overwhelming majority of county and circuit courts that have considered the issue and finds that a Plaintiff is entitled to an award of nominal damages “[i]f the nonbreaching party proves a breach of contract but is unable to prove [actual] damages”, Vangard Imaging, LLC v. Progressive Insurance Company, 11 Fla. L. Weekly Supp. 933a (Broward County, Judge Robert Lee, 2004), quoting M. Frey & T. Betting, Introduction to Contracts and Restitution 344 (1988), and at a minimum nominal damages have been found in countless P.I.P. cases for Defendant’s failure to provide pre-suit information. See e.g. R.J. Trapana, M.D., P.A. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 991a (Broward County, Judge Robert Lee, 2004) (holding “[t]he Plaintiff is entitled to recover under a contract theory for failure to provide the explanation of benefits, even if only nominal damages arise.”); Metro Med Care, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 944a (Broward County, Judge Lisa Trachman, 2008); Robert Whitney, D.C., Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 943a (Broward County, Judge Lisa Trachman, 2008); Metro Injury Rehab Center, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 939b (Broward County, Judge Peter B. Skolnik, 2008); NDNC Neurological Treatment Centers, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 745b (Broward County, Judge Sharon L. Zeller, 2008); NDNC Neurological Treatment Centers, Inc. v. United Auto. Ins. Co. 15 Fla. L. Weekly Supp. 744c (Broward County, Judge Jay S. Spechler, 2008); D. Abeckjerr, D.C., P.A. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 621b (Broward County, Judge Lisa Walsh, 2008); Chiropractic Radiology Consultants, P.A. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 160a (Broward County, Judge Robert W. Lee, 2007); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 99c (Broward County, Judge Sharon L. Zeller, 2006); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 99b (Broward County, Judge Sharon L. Zeller, 2006); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1234a (Broward County, Judge Julio E. Gonzales, Jr., 2006); Dade Injury Rehabilitation Center v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1093b (Broward County, Judge Jay S. Spechler, 2005); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 990a (Broward County, Judge Sharon Zeller, 2005); Miami Chiropractic Associates v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 677a (Broward County, Judge Jay Spechler, 2005); Primary Care Medical Group, Inc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 493a (Broward County, Judge Lisa Trachman, 2005); Miami Chiropractic Associates v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 391a (Broward County, Judge Robert W. Lee, 2005); Fidel S. Goldson, D.C., P.A. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 161b (Broward County, Judge Robert W. Lee, 2004); Miami Chiropractic Associates, Inc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 1107a (Broward County, Robert W. Lee, 2005); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 1101a (Broward County, Judge Lisa Trachman, 2005).

However, based upon the record evidence, this Court finds that the Plaintiff has suffered actual damages.

Accordingly, it is hereby

ORDERED AND ADJUDGED the Plaintiff’s Motion for Final Summary Judgment is GRANTED. Final summary judgment is entered in favor of Plaintiff as to Count I of the Complaint. Plaintiff is the prevailing party as to Count I and pursuant to Florida Statute 627.428, Plaintiff has obtained a “judgment or decree” entitling Plaintiff to recover from Defendant attorney’s fees and costs as to Count I in an amount to be determined at a later hearing. The court reserves jurisdiction to determine the amount of fees and costs.