15 Fla. L. Weekly Supp. 944a

Insurance — Personal injury protection — Declaratory judgment — Assignee/medical provider may maintain action to determine or enforce right to copy of insurance policy and declarations page under section 627.4137 — No merit to argument that insurer satisfied obligation to furnish documents to provider by furnishing documents to insured

METRO MED CARE, INC., a Florida Corporation (assignee of Gallegos, Jose), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-20789 COCE 54. July 21, 2008. Lisa Trachman, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Laura Meyers, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO COUNTS II and III OF COMPLAINT (re: Entitlement to a Copy of the Policy ofInsurance and Policy Declarations Page)

THIS CAUSE came before the Court on hearing on Plaintiff’s Motion for Summary Judgment as to Counts II and III of Complaint (re: Entitlement to a Copy of the Policy of Insurance and Policy Declarations Page) 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. Counts II and III of Plaintiff’s Complaint seek breach of contract regarding Plaintiff’s right to a copy of the insurance policy and declarations page, pursuant to F.S. s. 627.4137. The complaint further requests attorney’s fees and costs from Defendant pursuant to F.S. s. 627.428 based upon Plaintiff having to bring suit to enforce its statutory right to this information. The record evidence demonstrates that Plaintiff (through counsel) submitted multiple pre-suit requests for a copy of the insurance policy and declarations information. It is not disputed by record evidence that, despite repeated requests, the Defendant did not furnish this information to Plaintiff prior to suit.

Defendant argues that since the patient failed to attend two (2) properly scheduled Examinations Under Oath (“EUO’s”), Defendant was somehow relieved of its obligation to provide a copy of the policy and declarations page. Plaintiff maintains that the failure to provide a copy of the policy and declarations page results in a waiver of Defendant’s right to assert strict compliance with policy conditions (i.e., EUO no-show).

Conclusions of Law: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 may maintain an action to determine or enforce its right to a copy of the insurance policy and policy declarations page under F.S. s. 627.4137. See, 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. 583a (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).

The court is not persuaded by the argument that the insurer somehow satisfied its obligation to provide the Plaintiff with a copy of the insurance policy and declarations page by furnishing the information to the insured (or the insured’s attorney). See e.g. Dade Injury Rehab. Center v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 667a (Miami-Dade County, Judge Don Cohn, 2007) (holding medical provider/assignee is entitled to copy of policy and declarations page pre-suit, even if one was provided to insured); Florida Imaging Inc. v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 97a (Broward County, Judge Sharon Zeller, 2006) (finding “[t]he court is not persuaded by the argument that the insurer has only an obligation to furnish the insured with the information or that the insurer is relieved of any obligation to the provider by furnishing information to the insured); R.J. Trapana, M.D., P.A. 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); Dade Injury Rehab. Center v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 1157b (Broward County, Judge Terri-Ann Miller, 2007) (holding insurer is obligated to provide copy of explanation of benefits, policy and declarations page on pre-suit request from medical provider even if documents have been given to insured).

Florida Statute s. 627.4137 expressly requires the insurer to furnish this information to the “claimant” upon request. American Heritage Dictionary defines a “claimant” as “a party who makes a claim.” As such, the Plaintiff medical provider, who has accepted assignment of benefits for this claim, is a “claimant” entitled to the policy and declarations information. The court similarly finds that Florida Statute s. 627.4137 is not limited only to third party or liability claimants. The above cases clearly involved first party P.I.P. claimants and the court finds no logical or statutory distinction. See, e.g., United Auto. Insurance Co. v. Rousseau, 682 So. 2d 1229 (Fla. 4th DCA 1996). Put simply, an insurer cannot demand strict compliance with policy conditions on one hand, and then refuse to honor requests for copies of the policy on the other.

Accordingly, it is hereby

ORDERED AND ADJUDGED the Plaintiff’s Motion for Summary Judgment is GRANTED. Summary judgment is entered in favor of Plaintiff as to liability and at a minimum nominal damages on Counts II and III of the Complaint. Plaintiff is the prevailing party as to Counts II and III 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 Counts II and III in an amount to be determined at a later hearing. The court reserves jurisdiction to determine the amount of fees and costs.