15 Fla. L. Weekly Supp. 725a
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 is denied — Argument that medical provider failed to furnish disclosure and acknowledgment form not considered in ruling on motion to dismiss because argument is outside four corners of pleadings and relates to other dates of service
DADE INJURY REHABILITATION CENTER, a Florida Corporation (assignee of James, Monique), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-18848 CC 23 (5). May 5, 2008. Lisa Walsh, Judge. Counsel: Law Office of Russel Lazega, North Miami. Pinkert Law Firm, P.A., Miami.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS COUNTS I AND II
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 regarding the failure to provide an itemized specification of the unpaid charges (commonly known as an explanation of benefits or “EOB”) pursuant to F.S. 627.736(4)(b). 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:
Claims for Explanations of Benefits
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).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is respectfully DENIED as to Counts I & II without prejudice to raise a motion for summary judgment at a later date should facts warrant it.
