17 Fla. L. Weekly Supp. 249a
Online Reference: FLWSUPP 1704LUZJ
Insurance — Personal injury protection — Explanation of benefits — Failure to provide — PIP statute does not provide private right of action against insurer for failing to provide EOB to insured
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o LUZ JIL, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-459 AP. L.C. Case No. 07-3111 SP 25 (04). January 6, 2010. An Appeal from the County Court for Miami-Dade County. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Armando A. Brana, Armando A. Brana, P.A., for Appellee.
(Before KORVICK, FARINA, and MANNO SCHURR, JJ.)
CONFESSION OF ERROR
Appellee Professional Medical Group, Inc. (“Professional Medical”) won a final judgment against Appellant United Automobile Insurance Company, Inc. (“United Auto”) on the issue of Count III/Explanation of Benefits (“EOB”). The trial court awarded nominal damages, in part, for United Auto’s failure to provide an EOB, pursuant to sec. 627.736(4)(b), Fla. Stat. (2009)1. United Auto appealed that judgment.
Professional Medical now files a confession of error on this issue, citing to United Automobile Insurance Company v. A 1st Choice Healthcare Systems, 2009 WL 3616293, 34 Fla. L. Weekly D2268 (Fla. 3d DCA Nov. 4, 2009). In that decision, the Third District Court of Appeal held that the statute providing for PIP benefits did not afford a private right of action against an insurer for failing to provide an EOB to an insured within 30 days of receiving a claim. The Court found that there was no legislative intent to create a private right of action for violation of the statute. See Baumstein v. Sunrise Cmty., Inc., 738 So. 2d 420, 421 (Fla. 3d DCA 1999) (“There is no question that the primary, perhaps the only, issue pertinent to the question of whether a private cause of action may be based upon the breach of a statute is whether the legislature intended that to be the case” (citations omitted)). Absent a specific expression of such intent, a private right of action may not be implied. Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003). The decision opines that there is nothing in the text of section 627.736(4)(b), Fla. Stat. (2009), from which one can deduce that the legislature intended an insured to have a private right of action against an insurer for failure to provide an EOB. United Auto, 2009 WL 3616293.
As such, the trial court in the instant matter erred in awarding Appellee a final judgment in its favor because United Auto had failed to provide it with an EOB pursuant to sec. 627.736(4)(b), Fla. Stat. (2009). Appellee concedes as much by filing the Confession of Error. Therefore, the final judgment of the trial court, entered August 10, 2009, must be reversed.
This matter is reversed and remanded to the trial court for proceedings consistent with this ruling.
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1Section 627.736(4)(b), Fla. Stat. (2009), states in relevant part:
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. 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; . . . However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment . . . This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5).
Section 627.736(4)(b), Fla. Stat. (2009), as excerpted in United Automobile Insurance Company v. A 1st Choice Healthcare Systems, 2009 WL 3616293, 34 Fla. L. Weekly D2268 (Fla. 3d DCA Nov. 4, 2009).
