15 Fla. L. Weekly Supp. 943a

Insurance — Personal injury protection — Declaratory judgment — Insurer breached PIP contract by failing to provide explanation of benefits to assignee/medical provider — 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

ROBERT WHITNEY, D.C., INC., a Florida Corporation (assignee of Halliburton, Patience), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07019144 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 I, III AND IV OF COMPLAINT (re: Entitlement to a Copy of the Policy of Insurance,Policy Declarations Page and an Explanation of Benefits)

THIS CAUSE came before the Court on hearing on Plaintiff’s Motion for Summary Judgment as to Counts I, III and IV of Complaint (re: Entitlement to a Copy of the Policy of Insurance, Policy Declarations Page and an Explanation of Benefits) 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 Explanation of Benefits (commonly known as an EOB) and that Plaintiff is entitled to attorney’s fees and costs related to Count I for the necessity of bringing an action to enforce this statutory obligation. Defendant has presented no proper record evidence showing that it furnished the required itemized specification.

Counts III and IV of Plaintiff’s Complaint seek breach of contract and declaratory relief, respectively, 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 an EOB, policy and declarations page. Plaintiff maintains that the failure to provide an EOB, 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:The Plaintiff is correct that the provisions of the Florida Statutes governing insurance become part of the insurance contract between the parties, Grant v. State Farm Fire & Casualty Co., 638 So.2d 936, 938 (Fla. 1994); Mia A. Higginbotham, D.C., P.A. v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 748 (Broward Cty. Ct. 2004), and that accordingly, the provision of Florida Statute s. 627.736(4)(b) requiring the insurer to furnish the claimant with an itemized specification of unpaid charges became part of the contract and a breach of contract action is proper. See Goldson v. United Auto. Ins. Co. (Decision of Judge Robert Lee, Broward County case # 03-7459 COSO 62) [12 Fla. L. Weekly Supp. 161b]; STAT Technologies, Inc. v. United Auto. Ins. Co. (Decision of Judge Lee Jay Seidman Broward County Case 02-01929 COSO 62; All Care Health & Wellness v. United auto. Ins. Co. (Decision of Judge Sharon Zeller Broward County Case 03-3115 COSO 60) [11 Fla. L. Weekly Supp. 935a]. As a result, when the Defendant failed to comply with the mandatory provisions of Fla. Stat. §627.736(4)(b), it breached its insurance contract with the insured. Plaintiff has met the requisite burden to show that the required information was not furnished to the Plaintiff and Defendant has presented no proper record evidence to show a genuine disputed issue of material fact as to this question.

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 an EOB, 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 presuit 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 I, III and IV of the Complaint. Plaintiff is the prevailing party as to Counts I, III and IV 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 I, III and IV in an amount to be determined at a later hearing. The court reserves jurisdiction to determine the amount of fees and costs.