15 Fla. L. Weekly Supp. 624c
Insurance — Personal injury protection — Explanation of benefits — Failure to provide — Complaint does not specifically and sufficiently plead cause of action for breach of contract regarding failure to furnish EOB where there is no actual pleading of damages or demand for relief
DOCTORS URGENT CARE WALK-IN CLINIC, INC., (As Assignee of Latoya Simmons), Plaintiff, v. FIRST ACCEPTANCE INSURANCE COMPANY, INC., Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 07-31076, Div. H. March 18, 2008. Eric Myers, Judge. Counsel: David W. Lipscomb, Nicholas, Lipscomb and Patrick, P.A., for Plaintiff. Jeffrey R. Davis, Brasfield, Fuller, & Freeman, St. Petersburg, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS COUNT III OF PLAINTIFF’S COMPLAINT: BREACH OFCONTRACT SEEKING ITEMIZED SPECIFICATION OF UNPAID CHARGES/EOB
THIS CAUSE, having come before the Court on February 13, 2008, on Defendant’s Motion to Dismiss Count III of Plaintiff’s Complaint for failure to state a cause of action, served under Certificate of Service dated November 26, 2007, the Plaintiff being represented by David W. Lipscomb, Esq. of Nicholas, Lipscomb and Patrick P.A., and the Defendant being represented by Jeffrey R. Davis, Esq. of Brasfield, Fuller and Freeman, P.A., and the Court having heard the argument of counsel and otherwise being fully advised in the premises and law, it is:
ORDERED AND ADJUDGED the Court finds that:
1. The Complaint as drafted, specifically Count III of the Complaint, and within the four corners of the document, the Complaint does not specifically and sufficiently plead a cause of action with regard to the allegations of Count III. There is no actual pleading with regard to damages plead and/or sought or a plea for demand for relief with regard to Count III.
2. The Court further finds that even taking into consideration the case provided by Plaintiff’s counsel out of the 17th Judicial Circuit, United Automobile Insurance Company v. R.J. Trapana, M.D., P.A. as assignee of Dudley Mabout, 12 Fla. L. Weekly Supp. 452a, the question of attorneys’ fees and costs would be in addition to any award of original damages sought based upon the pleadings.
Therefore the Court finds that the pleading is insufficient on its face and Defendant’s Motion to Dismiss Count III of Plaintiff’s Complaint is GRANTED.
