16 Fla. L. Weekly Supp. 595a
Online Reference: FLWSUPP 166KEEN
Insurance — Personal injury protection — Explanation of benefits — Where it is undisputed that insurer wrongfully failed to provide EOB to medical provider, provider is entitled to nominal damages and reasonable attorney’s fees and costs
FIDEL S. GOLDSON, D.C., PA., a Florida Corporation (assignee of Keen, Yvonne), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-17658 COCE (53). April 13, 2009. Robert W. Lee, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Russell Kolodziej, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO COUNT I OF ITS AMENDED COMPLAINT
(re: Explanation of Benefits)
THIS CAUSE came before the Court on April 3, 2009 for hearing on Plaintiff’s Motion for Summary Judgment as to Count I of its Amended Complaint (Breach of Contract regarding itemized specification of unpaid charges), 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 an “itemized specification” of the unpaid charges (commonly known as an “Explanation of Benefits” or “EOB”). Plaintiff further contends that it is entitled to damages as well as attorney’s fees and costs related to this count for the necessity of bringing an action to enforce this statutory obligation. Defendant does not dispute that an EOB was never provided to the Plaintiff as it relates to this claim. The Defendant alleges that the Plaintiff: 1. Did not prove that it suffered damages as a result of the Defendant’s breach; and, 2. Is not entitled to attorney’s fees and costs pursuant to F.S. s. 627.428 in light of Progressive Am. Ins. Co. v. Rural/Metro Corp., 994 So. 2d 1202 (Fla. Dist. Ct. App. 5th Dist. 2008).
Conclusions of Law:When the Defendant failed to comply with the mandatory provisions of Fla. Stat. §627.736(4)(b) (evidenced by not only proper record evidence but by Defendant’s own admission as well), it breached its insurance contract with the insured entitling Plaintiff to recover damages (at a minimum, nominal) incurred as a result of the breach. See United Automobile Ins. Co. vs. R.J. Trapana, M.D., PA. (a/a/o Dudley Mabout), 12 Fla. L. Weekly Supp. 452a (17th Judicial Circuit, in its appellate capacity, 2005); see also Ault v. Lohr, 538 So. 2d 454 (Fla. 1989) (finding “the Florida Supreme Court accepts the view that nominal damages are presumed from an encroachment upon an established right.”).
This Court is cognizant of the Rural/Metro decision raised by the Defendant, and expressly finds that its proposition that “Section 627.428(1), Fla. Stat., and its predecessors, has consistently been interpreted to authorize recovery of attorney’s fees from an insurer only when the insurer has wrongfully withheld payment of the proceeds of the policy”, can be harmonized with Judge Eade’s decision in United Automobile Ins. Co. vs. R.J. Trapana, M.D., P.A. (a/a/o Dudley Mabout), 12 Fla. L. Weekly Supp. 452a (17th Judicial Circuit, in its appellate capacity, 2005) (holding “United Automobile’s failure to provide the required specification resulted in a breach of its obligation, entitling Trapanato attorney’s fees and costs.”) as well as with the panel of Judges in the 11th Circuit Court (acting in its appellate capacity) in A 1st Choice Healthcare Systems, Inc. (a/a/o Turner Plante) v. United Auto. Ins. Co., Case No. 08-023 AP (Miami-Dade circuit court, in its appellate capacity, 2009) (finding where the Defendant wrongfully withheld an EOB, the Plaintiff is awarded nominal damages for the breach and entitled to reasonable attorney’s fees and costs). Progressive Am. Ins. Co. v. Rural/Metro Corp., 994 So. 2d 1202 (Fla. Dist. Ct. App. 5th Dist. 2008). Specifically, the focus is not on whether P.I.P. benefits were withheld, but rather the wrongfulness of the breach. Here, it is undisputed that the Defendant wrongfully failed to provide an EOB to the Plaintiff. As such, the Plaintiff is entitled to reasonable attorney’s fees and costs pursuant to F.S. s. 627.428 at an amount to be determined at a later hearing.
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. Plaintiff is the prevailing party as to Count I 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 in an amount to be determined at a later hearing. The Court reserves jurisdiction to determine the amount of fees and costs.
