19 Fla. L. Weekly Supp. 841b
Online Reference: FLWSUPP 1910CURAInsurance — Personal injury protection — Damages — Insured’s action against insurer to recover for bills for treatment which was necessitated by automobile accident and which was provided by now-deceased physician whose estate has never laid claim to medical bills — Summary judgment entered in favor of insurer in absence of competent evidence that plaintiff continued to be liable for medical bills — In absence of proof of damages, breach of contract action against insurer cannot stand
ANTONIO ROBERTO CURA, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2005-10862 CC 05 06. May 22, 2012. Gladys Perez, Judge. Counsel: Stuart Yanofsky, Stuart B. Yanofsky, P.A., Plantation, and Michael Libman, Law Offices of Michael I. Libman, Miami, for Plaintiff. Scott E. Danner, Kirwan, Spellacy & Danner, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT AND FINALJUDGMENT FOR THE DEFENDANT
THIS CAUSE having upon to be heard on Defendant’s Motion for Final Summary Judgment on May 10, 2012 in the presence of a court reporter at Miami-Dade County Courthouse, 73 West Flagler Street, Miami, Florida 33130. This Court reviewed Defendant’s Motion for Summary Judgment and having heard argument from counsel for both parties and being otherwise fully advised in the premises, makes the following factual findings and conclusions of law.FACTUAL FINDINGS & CONCLUSIONS OF LAW
1. Plaintiff’s Complaint alleges an action for Breach of Contract for Personal Injury Protection (“PIP”) benefits under a policy of insurance issued by Defendant, Allstate Indemnity Company (“ALLSTATE”), and as a result of an accident that occurred on July 26, 2001.
2. Plaintiff alleged that he had sustained injuries as the result of the accident of July 26, 2001 in Miami-Dade County, Florida.
3. Plaintiff alleged that he incurred medical expenses in the amount of $12,665.00 for services rendered to him from medical providers beginning on August 7, 2001 to October 20, 2001 and attached the billing ledger from a single provider to the complaint.
4. The billing ledger had the name and address of Joseph Barrata, M.D., 2455 West Flagler St., Miami, Florida 33135, an account number of 01-144-15 and the ledger total of $12,665.00.
5. The record reflects that Dr. Barrata has passed away and that his estate had never laid claim to the medical bills prior to or after his passing.
6. Plaintiff had allegedly assigned his rights to a clinic identified as R.A. Medical Center located at 5501 N.W. 182nd Street, Miami, Florida where Dr. Barrata had allegedly treated the Plaintiff.
7. That R.A. Medical had filed a lawsuit and later dismissed the claim against the Defendant during the discovery phase of the case.
8. Subsequently, the clinic attempted to reassign their rights to the Plaintiff. The reassignment to the Plaintiff was the subject of another Motion for Summary Judgment that was set for the same date by the Defendant but not heard before the court entered Final Judgment against the Plaintiff.
9. That during the course of the litigation the Defendant attempted to secure the deposition of the owner, Raul Ramirez, from R.A. Medical and the Records Custodian from the clinic.
10. Despite service of process and subpoenas from the court, the owner and records custodian from the clinic refused to participate in the discovery process and failed to attend repeated depositions.
11. Defendant was not afforded an opportunity to authenticate or examine the records, the Plaintiff’s file with R.A. Medical, examine the owner/therapist, Raul Ramirez, on the treatment or to verify that the treatment was lawfully rendered. That the Defendant had no opportunity to resolve any of these questions.
12. Judge Bronwyn Miller ordered that Raul Ramirez and the Records Custodian from R.A. Medical Center, Inc. be stricken from testifying at the time of trial and the medical records from R.A. Medical Center, Inc., be stricken from evidence.
13. Defendant argued that with the doctor now deceased and the only medical records and bills at issue in the complaint now stricken from the record, that the Plaintiff could not present any evidence that there were any damages and that the Plaintiff could not possibly recover.
14. That the Defendant filed the deposition transcripts of the Plaintiff. That on March 18, 2003 the Plaintiff testified as follows:
Q. Has anybody at R.A. Medical Center either verbally or in writing told you that you need to pay money towards your medical bills?
A. No
. . .
Q. Did anybody explain to you that you would be responsible for 20 percent of any of the bill that you incurred with this company?
A. Nothing about that was spoken.
(p. 45, ln. 11-24)
Q. Has anybody ever informed you about the amount of the bill that you’ve incurred with R.A. Medical Center?
A. No.
(p. 53, ln 4-7).
15. That the record is devoid of any evidence of any damages that the Plaintiff could possibly recover. The Plaintiff did not file an affidavit from the medical provider, did not file a deposition transcript from Raul Ramirez, the clinic owner, or from a records custodian from the clinic or any other competent evidence showing that the Plaintiff had suffered any damages to be compensated for as a result of the accident.
16. Under Florida law, one of the required elements in a cause of action for breach of contract is that the breach caused damages. This is a well accepted principle under Florida law. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994) [20 Fla. L. Weekly D85c]; J.J. Gumberg Co. v. Janis Services, Inc., 847 So.2d 1048, 1049 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1287a]; Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1226-1227, n.2 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1243a]; Abbott Laboratories, Inc. v. General Electric Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D1230c]; Scott-Steven Development Corp. v. Gables by the Sea, Inc., 167 So.2d 763, 764 (Fla. 3d DCA 1964) cert. denied 174 So.2d 32 (Fla. 1964), (“Not all breaches of contract result in damages and the law furnishes a remedy only for such wrongful acts as result in injury or damage”). All of these cases confirm that under Florida law the elements of a breach of contract are:
1. proof of a contract,
2. proof of a material breach, and
3. proof of damages
17. That Plaintiff attempted to rely on an affidavit from his attorney or record in this case, Michael Libman, wherein he stated:
. . .The revocation was accepted by RA Medical Center based on the understanding between the provider and Affiant, as attorney for Mr. Cura that Mr. Cura would proceed by all means to attempt to collect the amounts due to the provider from his auto insurance company.
RA Medical Center sent copies of medical bills to Affiant, as attorney for Mr. Cura and routinely communicated with Affiant’s firm regarding the status of the claim. Based upon the understanding between RA Medical Center and Affiant, an attorney for Mr. Cura, it is Affiant’s belief that monies remain owing to RA Medical Center for expenses incurred by Mr. Cura. At no time has there been forgiveness by the provider of amounts due to it from Mr. Cura for expenses incurred as a result of his auto accident.
18. The Court has determined that the affidavit of Mr. Libman is based entirely on inadmissible hearsay, that the Plaintiff did not attach any evidence to the Affidavit in support of these statements and that the Plaintiff has attempted to circumvent Judge Miller’s order striking the medical records and testimony of Raul Ramirez, the Records Custodian and RA Medical Center by offering hearsay statements in the form of Mr. Libman’s testimony.
19. Based upon the foregoing the Court has determined that there is no genuine issue of material fact as the Plaintiff has failed to put any evidence in the record to indicate that Mr. Cura has sustained any damages which are an essential element of a breach of contract claim.
20. Defendant’s Motion for Summary Judgment is hereby GRANTED. It is further,
21. ORDERED AND ADJUDGED that the Plaintiff, Antonio Robert Cura, shall take nothing by this suit as to Defendant, Allstate Indemnity Company, and Defendant shall go hence without day. It is further,
22. ORDERED AND ADJUDGED that this Honorable Court hereby reserves jurisdiction to determine Defendant’s entitlement to recover its reasonable attorney’s fees and costs, and any other relief the court deems just and proper.
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