19 Fla. L. Weekly Supp. 212a
Online Reference: FLWSUPP 1903JONEInsurance — Personal injury protection — Mileage to attend independent medical examination — Insured has not adequately pled cause of action for breach of PIP policy based on insurer’s inadvertent reimbursement of mileage for IME attendance from available PIP benefits where there is no proof that insured sustained any damages — Correction of oversight by insurer after action was filed does not constitute confession of judgment where insured has failed to prove necessary damages element of cause of action
KAREN JONES, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pasco County, County Civil. Case No. 51-2008-CC-2496-WS. April 7, 2011. Honorable Candy VanDercar, Judge. Counsel: Arthur Liebling, Arthur Liebling, P.A., Safety Harbor, for Plaintiff. Chad C. Guzzo, Masten, Lyerly, Peterson & Denbo, LLC, Tampa, for Defendant.ORDER GRANTING DEFENDANT’S MOTIONFOR PARTIAL SUMMARY JUDGMENT(Count II of Plaintiff’s First Amended Complaint)
THIS CAUSE, having come for consideration upon Defendant’s Motion for Partial Summary Judgment for Count II as Plaintiff Has Not Been Damaged (“Motion for Partial Summary Judgment”), and the Court having heard argument and being fully advised in the premise finds as follows:
UNDISPUTED FACTS
1. This is an action for Personal Injury Protection (“PIP”) and medical payment coverage benefits and alleged damages related to purported breaches of contract arising out of an April 4, 2006 motor vehicle accident involving State Farm’s insured, Karen Jones. Count I seeks payment of chiropractic medical bills incurred after a benefit discontinuation date based on an Independent Medical Examination (“IME”), Count II seeks mileage reimbursement payment related to Plaintiff’s attendance at her IME, and Count III seeks mileage reimbursement related to Plaintiff’s seeking medical treatment.
2. Count II of Plaintiff’s First Amended Complaint admits that Plaintiff has been reimbursed for the mileage she incurred in travelling roundtrip to attend her IME; however, it alleges that State Farm breached the subject policy of insurance by reimbursing Plaintiff for the mileage she incurred in traveling roundtrip to attend her IME from her available PIP benefits.
3. On or about March 31, 2006, State Farm issued a policy of insurance to Karen Jones which provided $10,000 in PIP coverage and $10,000 in Medical Payment coverage.
4. On April 4, 2006, Plaintiff was involved in a motor vehicle accident from which she reported receiving bodily injuries as a result.
5. On or about January 30, 2007, R.C. Harding, D.C., D.A.B.C.O. conducted an IME of Plaintiff. Pursuant to Dr. Harding’s findings, benefits were discontinued for chiropractic medical treatment after February 23, 2007. Plaintiff continued receiving chiropractic medical treatment after February 23, 2007.
6. On November 8, 2007, Plaintiff’s counsel sent State Farm a purported demand letter seeking $10.50 in mileage reimbursement for Plaintiff’s round trip travel to her January 30, 2007 IME. Plaintiff’s counsel also sent another demand letter seeking $290.59 in mileage reimbursement for roundtrip travel to and from her chiropractic medical provider.
7. On November 21, 2007, State Farm responded by paying Plaintiff $201.22, of which $11.45 (an amount above what was sought) was for the mileage she incurred in traveling roundtrip to attend her IME. The remainder of the payment was for reimbursement for the mileage she incurred traveling roundtrip to her chiropractic medical provider up to February 23, 2007. No mileage was reimbursed for travel related to chiropractic-related dates of service after February 23, 2007.
8. At the time that State Farm reimbursed Plaintiff for the mileage she incurred in attending her IME, Plaintiff had almost $4,000 in PIP benefits remaining and approximately $8,500 available in medical payment benefits. No additional claims had been made for PIP or medical payment benefits that would have exhausted either coverage.
9. When State Farm reimbursed Plaintiff for the mileage she incurred in attending her IME, State Farm inadvertently reimbursed her from her available PIP benefits. After the subject action was filed, State Farm amended the IME mileage reimbursement so that it was deducted from State Farm’s own general account. This resulted in approximately $11.45 in additional PIP benefits being made available to Plaintiff.
10. This internal, inadvertent reimbursement oversight did not result in the denial or delay of any of the claims submitted to State Farm for PIP and medical payment benefits for the subject accident.
11. No counter-evidence to State Farm’s Motion for Partial Summary Judgment was submitted by Plaintiff.
ISSUE & ANALYSIS
12. The issue before this Court is whether Plaintiff has been “damaged” as a result of State Farm’s internal, inadvertent IME mileage reimbursement oversight such that she can maintain Count II against State Farm.
13. To adequately plead a breach of contract action, three elements are required: (1) a valid contract; (2) a material breach; and (3) damages (Emphasis added). Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1615a], citing, J.J. Gumberg Co. v. Janis Servs., Inc., 847 So. 2d 1048, 1049 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1287a]; Indus. Med. Pub. Co. v. Colonial Press of Miami, Inc., 181 So. 2d 19, 20 (Fla. 3d DCA 1966).
14. “Damages” generally connotes payment in money for losses caused by a breach of duty. Fla. Jur. 2d Damages § 1 (2008). The purpose of damages is to put the injured party in the same position as he/she would have been in upon the complete performance of the allegedly breached contract. In re Elkowni, 318 B.R. 605 (Bankr. M.D. Fla. 2004) [18 Fla. L. Weekly Fed. B35a]. Because of this, an injured party should only recover an amount in damages that is “equal to and precisely commensurate” with the injury that he/she received. Hanna v. Martin, 49 So. 2d 585, 587 (Fla. 1950). Thus, “when there is no proof of damages, there can be no recovery.” Broxmeyer v. Elie, 647 So. 2d 893, 895 (Fla. 4th DCA 1994), citing, Ryan v. Atlantic Fertilizer and Chemical Co., 515 So. 2d 324 (Fla. 3d DCA 1987).
15. Plaintiff has not shown any evidence of how she was “damaged” as a result of State Farm’s internal, inadvertent reimbursement oversight. From the time that State Farm reimbursed Plaintiff from her available PIP benefits for the mileage she incurred in attending her IME to the time that State Farm amended the payment source of same, Plaintiff had almost $4,000 in PIP benefits remaining and approximately $8,500 available in medical payment benefits. At no time during the aforementioned period did Plaintiff or any of her assignees submit any claims that were denied due to: (1) this internal, inadvertent reimbursement oversight or (2) the exhaustion of either of the available coverage benefits.
16. There is no evidence that Plaintiff has incurred any out of pocket expenses or other costs from this alleged breach of contract by State Farm. Accordingly, Plaintiff has no “damage” as related to same.
17. The Court disagrees with Plaintiff’s contention that any remedy of the reimbursement oversight that occurred after the subject action was filed should be treated as a confession of judgment. A confession of judgment would require that Plaintiff prove the elements supporting her cause of action (i.e.: breach of contract). See Schuster v. Blue Cross & Blue Shield of Fla., 843 So. 2d 909, 913 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a] (Since plaintiff assignors were not damaged by defendant insurer’s failure to pay interest to plaintiff’s assignee, defendant’s payment of interest to the assignee after assignor’s suit was filed is not a confession of judgment.).RULING
18. Since there is no genuine issue of material fact, State Farm’s Motion for Partial Summary Judgment (Count II of Plaintiff’s First Amended Complaint) is GRANTED. It is further ordered and adjudged that Plaintiff is not entitled to recover any attorney fees or costs related to Count II of Plaintiff’s First Amended Complaint.
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