17 Fla. L. Weekly Supp. 986a
Online Reference: FLWSUPP 1710LAZO
Insurance — Personal injury protection — Coverage — Medical benefits — Denial — Error to grant summary judgment in favor of provider on sclaim based on insurer’s failure to provide explanation of benefits, as neither insured nor its assignee has private right of action against insurer for failure to provide EOB
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. FRIEDMAN CHIROPRACTIC CENTER, P.A., a/a/o Betty Lazo, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-154 AP. L.T. Case No. 07-001503 SP 26. July 9, 2010. On Appeal from the County Court for Miami-Dade County, Robin Faber, Judge. Counsel: Lara J. Edelstein, General Counsel of United Automobile Insurance Company, for Appellant. Martin D. Berger, Stuart B. Yanofsky, and Zachary A. Hicks, for Appellee.
(Before LOPEZ, WARD, and EIG, JJ.)
(EIG, Judge.) The Defendant/Appellant, United Automobile Insurance Company (“Insurer”) appeals a final judgment in favor of Plaintiff/Appellee, Friedman Chiropractic Center, P.A. (“Provider”) as assignee of Betty Lazo (“Insured”). In the underlying action, Provider filed a two-count complaint against Insurer for “damages for overdue no-fault benefits, interest on overdue no-fault benefits, and interest on late payment of no-fault benefits.”
Count I of the Complaint is a claim for damages for no-fault benefits. Count II of the Complaint claims that Insured failed to provide an explanation of denial of benefits pursuant to section 627.736(4)(c), Florida Statutes.
The Provider filed a Motion for Partial Summary Judgment as to Count II, which sought nominal damages for Insurer’s failure to provide an appropriate explanation of benefits in the course of adjusting the claim. Insurer filed its opposition to the motion. The trial court granted the Provider’s motion for partial summary judgment as to Count II. The order stated simply that the Provider “shall receive nominal damages to be determined at a later time.”
Sometime thereafter, Count I was voluntarily dismissed by the Provider during the course of litigation.
The trial court entered the Final Judgment which awarded $1.00 (one dollar) in nominal damages, “that shall bare [sic] interest of 11% per a year.” Additionally, the trial court held that the Provider, “as the prevailing party to Count II of its Complaint, is entitled to its reasonable attorney’s fees under Fla. Stat. § 627.428 and Fla. Stat. § 627.736(8) and costs pursuant to Fla. Stat. § 92.231 and Fla. Stat. § 57.041.” In its order, the trial court retained jurisdiction over the matter to determine the amount of attorney’s fees owed.
As to Count II of the Complaint, the Third District Court of Appeal has held that an insured (or its assignee) does not have a private right of action against an insurer for failure to provide an EOB. United Automobile Ins. Co. v. A 1st Choice Healthcare Systems, etc., 21 So. 3d 124, 128 (Fla. 3d DCA 2009). In the instant case, Count II of the Complaint is without merit and summary judgment should not be granted in favor of the Provider. There is no entitlement to nominal damages, even if damages for failing to provide an EOB could be shown. Id.
As such, this matter is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion.
Appellee’s Motion for Attorney’s Fees, pursuant to § 627.428(1) is DENIED. (LOPEZ and WARD, JJ., concur.)
