15 Fla. L. Weekly Supp. 283a
Insurance — Personal injury protection — Explanation of benefits — Medical provider may state cause of action for breach of contract and/or declaratory relief for failure to provide EOB — Provider may also maintain action for copy of policy and declarations page
STEVEN D. GELBARD, M.D., P.A., Florida Corporation (assignee of Jean, Sophia), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-14416 COCE 52. January 16, 2008. Jay Spechler, Judge. Counsel: Jonathan Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Orlando Ortiz, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNTS II, IV, V AND GRANTING AS TO COUNT III
THIS CAUSE, came before the court for hearing on January 16, 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 for failure to provide an Explanation of Benefits (commonly known as an “EOB”) pursuant to F.S. 627.736(4)(b); Count III is a claim for declaratory relief for failure to provide a P.I.P. payout log, or “PIP log”, pursuant to F.S. 627.736(4)(b); Counts IV and V seek declaratory relief and breach of contract for failure to provide a copy of the policy of insurance and the policy declarations page pursuant to F.S. 627.736 and/or 627.4137; Count VI is a claim for breach of contract for failure to provide P.I.P. benefits. Defendant alleges in its Motion to Dismiss that its failure to provide pre-suit information to Plaintiff cannot amount to a material breach of contract and that Plaintiff fails to allege that it was damaged as a result of the breach.
Conclusions of Law:
Claims for Explanations of Benefits
This court agrees with the more than thirty-five (35) published decisions across the state which uniformly find that a Plaintiff may state a cause of action for breach of contract and/or declaratory relief for failure to provide an Explanation of Benefits. See e.g. R.J. Trapana, M.D., P.A. (a/a/o Paolo D’Onofrio) 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). As to Defendant’s argument of damages, Plaintiff correctly asserts that the critical question is breach, see Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), and damages upon a determination of liability are for a jury, and may even be nominal. See Mia A. Higginbotham, D.C., P.A. v. United Auto. Ins. Co. (Decision of Judge Robert W. Lee Broward County Case 05-04557 COCE 53); See also Primary Care Medical v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 493 (Decision of Judge Lisa Trachman, County Court, Broward County 2005) (provider may maintain action for declaratory relief for EOB).
Claims for Policy and Declarations Page
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 for a copy of the insurance policy and policy declarations page. See, e.g., Integra Diagnostics v. Reliance Nat’l Ind., 8 Fla. L. Weekly Supp. 349c (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. 69a (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). See also Dade Injury Rehab. Ctr. (Jackson, Roshanda) v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 667a (County Court, Miami-Dade 2007) (holding Medical provider/assignee is entitled to copy of policy and declarations page pre-suit, even if one was provided to insured and finds that it is sound policy to encourage prospective litigants to be informed pre-suit to minimize needless and baseless filings).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED as to Counts II, IV, and V; and GRANTING as to Count III. Defendant shall respond to the complaint within 20 days.
