16 Fla. L. Weekly Supp. 99a

Insurance — Personal injury protection — Declaratory judgment — Failure to provide explanation of benefits results in breach of contract — Letter denying claim that did not include all dates of service is legally insufficient EOB — Assignee medical provider is entitled to copy of PIP policy and declarations page — Insurer’s obligation to provide policy and declarations page presuit is not satisfied by furnishing documents to insured’s attorney

ADVANCED CHIROPRACTIC & REHABILITATION CENTER, a Florida Corporation (assignee of Herrera-Gomez, Teudis), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-9304 CC 23 (05). November 10, 2008. Lisa Walsh, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Jennifer Hogue, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (re: Explanation of Benefits, Insurance Policy and Declarations Page)

THIS CAUSE, came before the court for hearing on October 28, 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. Count I claims 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); Counts II and III are claims for 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 for 627.4137. Plaintiff alleges in its motion that Defendant failed to provide a legally compliant EOB, as it did not list all dates of service for treatment provided related to the applicable date of loss. Defendant replied that it need not provide an itemized specification as to each and every date of service.

Plaintiff’s allegation that it was not provided with a copy of the policy of insurance or a policy declarations page, despite a pre-suit request for the same, was uncontroverted. However, Defendant argues that when it provided a copy of the policy and declarations page to the patient’s attorney, it satisfied its obligation to the medical provider/assignee pursuant to F.S. s. 627.4137.

Conclusions of Law:It is well settled, in Courts throughout the state, that the failure of an insurance carrier to provide an Explanation of Benefits pursuant to F.S. s. 627.736(4)(b) results in a breach of the contract of insurance. United Auto. Ins. Co. v. R.J. Trapana, M.D., P.A. (Decision of the Honorable Richard Eade) Circuit Court, Broward County (Appellate), 12 Fla. L. Weekly Supp. 452a (2005) Review Denied by 4th District Court of Appeal; United Auto. Ins. Co. v. Stat Technologies, Inc., 12 Fla. L. Weekly Supp. 840d (Decision of Judge John Luzzo (Appellate), Circuit Court, Broward County 2005).

Here, while Defendant did provide an EOB, which stated that the claim was being denied for the failure of the patient to attend an independent medical examination (“I.M.E.”), the letter did not include all dates of service and therefore the correspondence letter is a legally insufficient EOB.

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 is entitled to a copy of the insurance policy and policy declarations page pursuant to 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); Rural Metro Ambulance v. Liberty Mut. Ins. Co., 11 Fla. L. Weekly Supp. 69a (County Court, Broward 2003).

The proper record evidence before this Court demonstrates a failure on the part of the Defendant to comply with its statutory duties to provide Plaintiff with a copy of the policy of insurance and policy declarations page.

Defendant’s argument that it provided the pre-suit information to the patient’s attorney is wholly without merit. See American Vehicle Ins. Co. v. Florida Emergency Physicians Kang & Assoc., P.A., 14 Fla. L. Weekly Supp. 352a (Orange County, in its appellate capacity, 2007) (holding “[u]nder section 627.4137, a carrier must provide information to any ‘claimant’, not merely to the ‘named insured’ . . . the Court concludes that AVIC is not relieved of its duty to provide the declarations page (or information contained therein) by virtue of Kang’s imputed knowledge of this information.”); Metro Med Care, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 944a (Broward County, Judge Lisa Trachman, 2008) (holding “[t]he 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).”); Robert Whitney, D.C., Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 943a (Broward County, Judge Lisa Trachman, 2008) (holding “[t]he 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).”); 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., 14 Fla. L. Weekly Supp. 99b (Broward County, Judge Sharon Zeller, 2006) (finding “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.”) (emphasis added in original); R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 99c (Broward County, Judge Sharon Zeller, 2006) (finding “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.”) (emphasis added in original); 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); Dade Injury Rehab. Ctr. 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 and finds that it is sound policy to encourage prospective litigants to be informed pre-suit to minimize needless and baseless filings); Bella-Mar Injury Clinic, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 1011b (Hillsborough County, Judge Joelle Ann Ober, 2008) (holding “[t]he court agrees with Plaintiff’s motion that pursuant to F.S. Section 627.4137, the Defendant is required to provide a copy of the Declaration Page and a copy of the insurance policy to a medical provider assignee . . . who was entitled to receive these documents directly from the Defendant.”).

ORDERED AND ADJUDGED the Plaintiff’s Motion for Summary Judgment is GRANTED. Summary judgment is entered in favor of Plaintiff as to liability relative to Counts I, II, & III of the complaint. The Court reserves jurisdiction to determine entitlement to and amount of attorney’s fees and costs (to be determined at a later hearing).