16 Fla. L. Weekly Supp. 576b
Online Reference: FLWSUPP 166PLANT
Insurance — Personal injury protection — Explanation of benefits — Where insurer breached contract by failing to provide EOB within thirty days of receipt of bills, medical provider is awarded nominal damages of $1.00, attorney’s fees and costs
Per Curiam Affirmed by Circuit Court. Cert. Granted by District Court of Appeal; circuit court order quashed. 34 Fla. L. weekly D2268a (United Auto. Ins. Co. v. A 1st Choice Healthcare Systems, 3D09-809, 11/4/09).
A 1ST CHOICE HEALTHCARE SYSTEMS, INC., (a/a/o Turner Plante), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-00818 SP 26 (02). December 21, 2007. Robin Faber, Judge. Counsel: Zachary A. Hicks; Michael Berger; and Russel Lazega and Yasmin Babain, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Lewis Robinson, Michael J. Neimand, Ivy R. Ginsberg, and Thomas L. Hunker, for Defendant. [Editor’s note: Affirmed. (United Auto. Ins. Co. v. A 1st Choice Healthcare System, 11th Jud. Cir., 3/23/09; Case No. 08-023 AP).]
ORDER DENYING DEFENDANT’S MOTION FOR REHEARING AND/OR RECONSIDERATION OF NOVEMBER 28th, 2007, ORDER GRANTING SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court upon December 12, 2007, on Defendant’s Motion for Rehearing and/or Reconsideration of November 28th, 2007, Order Granting Summary Judgment, and the Court, being otherwise fully advised on the premises,
It is hereby CONSIDERED, ORDERED AND ADJUDGED:
1. Defendant’s Motion is denied.
2. This matter concerns a breach of contract action relating to the Defendant’s failure to comply with the provisions of Florida’s PIP Statute. Defendant, United Automobile Insurance Company, insured Turner Plante for personal injury protection benefits under policy number UAU 000757202. Turner Plante was involved in an automobile collision on February 6, 2004.
3. Turner Plante presented to Plaintiff A 1st Choice Healthcare Systems, Inc. and received medical care for his injuries from February 9, 2004 through February 16, 2004. Defendant received Plaintiff’s bills on March 8, 2004. Defendant did not respond to Plaintiff’s bills within thirty days of receipt of the bills.
4. Count II of Plaintiff’s Complaint is for breach of contract regarding the Defendant’s failure to provide itemized specification of denial within thirty days of receipt of Plaintiff’s bills pursuant to Florida Statute § 627.736(4)(b).
5. Factually, Plaintiff relied on the Affidavit of Lizbeth Velazquez, the litigation adjuster for United Automobile assigned to this file. In her affidavit, Ms. Velazquez testified that although United Auto received the bills on March 8, 2004, it did not respond to Plaintiff’s bills until April 12, 2005.
6. In the case at bar, the insured and insurer entered into a contract regarding the provision of PIP benefits under an automobile insurance policy. As all policies of insurance providing PIP benefits are strictly governed by Florida Statute § 627.736, then under Florida case law, the provisions of § 627.736 become a material part of the contract between the parties, and any breach of those statutory provisions is a material breach of the underlying insurance contract. Grant vs. State Farm Fire & Casualty Co., 638 So. 2d 936 (Fla. 1994); State Farm Mutual Insurance Company v. Laforet, 658 So. 2d 55 (Fla. 1995).
7. Florida Statute § 627.736(4)(b) provides “When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.” Fla. Stat. § 627.736(4)(b) (2001).
8. Defendant, United Automobile, failed to provide Plaintiff with an itemized specification of denial with thirty days of receipt of the bills. In fact, United Automobile did not respond to Plaintiff’s claim for over thirteen months. Therefore, United Automobile violated Florida Statute § 627.736(4)(b), and in turn, breached the contract at issue in this matter.
9. Plaintiff is awarded nominal damages for Defendant’s breach of the contract, in the amount of $1.00, and as a prevailing party to Count II, Plaintiff is entitled to its reasonable attorney’s fees and taxable costs. H.D. Hutchinson v. C.E. Tompkins, 259 So. 2d 129 (Fla. 1972); Beverage Canners, Inc. v. Cott Corporation, 372 So. 2d 954 (3rd DCA 1979); Stevens v. Cricket Club Condominium, Inc., 784 So. 2d 517 (Fla. 3rd DCA 2001); Ivey v. Allstate Insurance Company, 774 So. 2d 679 (Fla. 2000); United Automobile Insurance Company v. R.J. Trapana, 12 Fla. L. Weekly Supp. 452a (17th Jud. Cir. App. 2005).FINAL JUDGMENT
Defendant, United Automobile Insurance Company, shall pay Plaintiff, A 1st Choice Healthcare Systems, Inc., the sum of $1.00 in nominal damages, that shall bear interest at the rate of 11% per year, for which let execution issue. Additionally, this Court holds that Plaintiff, as the prevailing party to Count II of its Complaint, is entitled to its reasonable attorney’s fees under Florida Statute § 627.428 and Florida Statute § 627.736(8) and costs pursuant to Fla. Stat. § 92.231 and Fla. Stat. § 57.041. This Court retains jurisdiction over this matter to determine the amount of attorney’s fees owed to the Plaintiff by the Defendant.
