15 Fla. L. Weekly Supp. 374d
Insurance — Personal injury protection — Explanation of benefits — Motion to dismiss breach of contract claim for failure to provide EOB is denied — Declaratory action regarding insurer’s obligation to provide EOB is dismissed as unnecessary where statute is clear — Insurer’s obligation to provide copy of contract, declarations page, and/or PIP log upon presuit request from assignee/medical provider — Section 627.736 does not require insurer to provide PIP log presuit — Breach of contract claim and declaratory action for failure to provide declarations page and copy of policy are dismissed because insurer’s failure to comply with duty to provide documents should not be pled as separate counts, but should fall under breach of PIP contract claim
DADE INJURY REHAB, a/a/o MICHAEL LOPEZ, Plaintiff, vs. UAIC, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 07-19211 SP 23 (02). January 31, 2008. Caryn Canner Schwartz, Judge. Counsel: Russel Lazega, for Plaintiff. Karen E. Trefzger, for Defendant.
AMENDED ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNT I ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COUNTS II, III, IV & V
THIS CAUSE, came before the Court for hearing on November 15, 2007, on Defendant’s Motion to Dismiss Counts I, II, III, IV, & V, 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 PIP case: Count I is a Breach of Contract for failure to provide an Explanation of Benefits (EOB); Count II is a Declaratory Action for failure to provide an EOB; Count III is a Declaratory Action for failure to provide a PIP Log pursuant to F.S. 627.736(4)(b); Count IV is a Declaratory Action for failure to provide a declaration page and a copy of the insurance policy and Count V is a Breach of Contract for failure to provide a declaration page and a copy of the insurance policy pursuant to F.S. 627.736 and 627.4137; Count VI is Breach of Contract, failure to pay.
COUNT I: Breach of Contract for failure to provide an EOB: DENIED. The P.I.P. statute, specifically 627.736(4)(b), is clear in its language that a provider is entitled to an explanation of benefits when the insurer denies or reduces a claim of medical benefits.
COUNT II: Declaratory Action for EOB: GRANTED (without leave to amend): The statute is clear on its face that the insurance company must provide an EOB, therefore, a declaratory action stating the same is not needed.
COUNT III: Declaratory Action for PIP LOG pursuant to 627.736(4)(b): GRANTED (without leave to amend): P.I.P. statute 627.736(4)(b) does not require an insurance company to provide pre-suit a PIP Payout Log.
COUNT IV: Declaratory Action for Declaration Page and Copy of Insurance Policy pursuant to Fla. Stat. 627.4137: GRANTED (without leave to amend): The Court finds that Fla. Statute 627.4137 applies to the P.I.P. statute 627.736 in requiring an insurer to produce the declaration page and a copy of the insurance policy within thirty days upon written request by the claimant, however, a declaratory action is not warranted is this regard. Please refer to Count V below.
COUNT V: Breach of Contract for failure to provide Declaration Page and Copy of Insurance Policy pursuant to Fla. Stat. 627.4137: GRANTED (with leave to amend): The Court holds that Fla. Statute 627.4137 applies to the P.I.P. statute 627.736 in requiring an insurer to produce the declaration page and a copy of the insurance policy within thirty days upon written request by the claimant. Failure of the insurance company to comply should not be pled as a separate count but should fall under a Breach of Contract claim of the PIP statute, which incorporates the contract of insurance and applicable statutes.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED as to Count I, and GRANTED as to COUNTS II, III, IV & V. Counts II, III and IV are dismissed without leave to amend. Count V is dismissed, with leave to amend to be incorporated into a breach of contract of insurance contract (already pled in Count VI). Plaintiff shall have 20 days to file an Amended Complaint consistent with this Court’s ruling, and Defendant shall have 20 days to respond to the Amended Complaint.
