7 Fla. L. Weekly Supp. 760a
Insurance — Personal injury protection — Insurer complied with statutory and contractual obligations when it timely paid medical provider eighty percent of charges for all reasonable and necessary medical services and agreed to defend and indemnify insured if provider pursued insured for any unpaid balance — Record showed that insured did not suffer damages from insurer’s reduction of payments to medical provider, and there was no evidence that insurer had breached its promise to defend and indemnify insured in the event provider attempted to collect unpaid balance — Insured not denied right to access to court in connection with breach of contract claims where insured did not suffer any damages, an essential element of a breach of contract claim — Insured cannot maintain cause of action for breach of contract for potential damages — Insurer’s company policy of not paying for unreasonable or unnecessary expenses and its provision to defend and indemnify insured if insured is sued for unpaid charges is not contrary to statutory or case law
Certiorari denied for failure to establish threshold requirements for certiorari relief at 27 Fla. L. Weekly D88b
District Court opinion quashed at 28 Fla. L. Weekly S287a
VERON CARAVAKIS, Appellant, v. ALLSTATE INDEMNITY COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 00-0028-CI-88A. August 30, 2000. Charles W. Cope, Judge. Appeals from Final Judgment, County Court, Civil Division, Pinellas County, The Honorable Horace A. Andrews. Counsel: Tony Griffith, Clearwater, for Appellant. Anthony J. Parrino, St. Petersburg, for Appellee.
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Vernon Caravakis (Appellant), from an Order Granting Motion For Summary Judgment in favor of Allstate Indemnity Company (Appellee), entered November 29, 1999, by the Pinellas County Court, Civil Division. Upon review of the record and the briefs and being otherwise fully advised in the premises, the Order entered by the lower court is affirmed.
Although a party moving for summary judgment has a high burden, the Appellee met that burden in this case. See Tamm v. Bradley, 696 So.2d 816 (Fla. 2d DCA 1997). The record shows that the Appellant sued the Appellee alleging that it had failed to comply with its statutory and contractual obligations to timely pay personal injury protection benefits. The Appellant also alleged that the Appellee had refused to pay losses and owed the Appellant money.
In response, the Appellee denied these allegations and presented evidence that it had timely paid PIP benefits to the Appellant’s medical provider. In moving for summary judgment, the Appellee attached the sworn affidavit of the assigned claims adjuster who further confirmed that PIP benefits had been properly paid and that Allstate Indemnity Company would defend and indemnify the Appellant should he be pursued for any unpaid balance. The record also shows that the bills in controversy were from one medical provider and that of the $2,114.00 “billed”, Allstate Indemnity “covered” $2,027.00, eighty percent of which was then timely paid. These facts are not in dispute.
In granting the Appellee’s Motion for Summary Judgment, the lower court cited authority that holds an insurance company does not breach its contract, and the insured suffers no damages, when the insurer pays the amount it determines to be reasonable for a submitted expense and further agrees to defend and indemnify the insured if he or she is pursued for any balance resulting from such a determination. See McGill v. Auto. Assoc. of Michigan, 526 N.W.2d 12 (Mich. App. 1994); LaMothe v. Auto Club Ins. Assoc., 543 N.W.2d 42 (Mich. App. 1995); McQueen v. Allstate Indemnity Co., 6 Fla. L. Weekly Supp. 185 (Fla. 17th Cir. Ct. 1998); Dominquez v. State Farm Mutual Auto. Ins. Co., No. 99-2376 (Fla. Pinellas Cty. Ct. July 22, 1999); Bodden v. Allstate Ins. Co., No. 98-7762 (Fla. Pinellas Cty. Ct. August 10, 1999); see also Lefstead v. State Farm Mutual Auto. Ins. Co., No. 98-15113 (Fla. Hillsborough Cty. Ct. July 6, 1999); Strauss v. State Farm Mutual Auto. Ins. Co., No. 98-2465 (Fla. Lee Cty. Ct. October 15, 1999); and Wells v. State Farm Mutual Auto. Ins. C o., No. 98-3091 (Fla. Hillsborough Cty. Ct. February 14, 2000).
The record shows that the Appellant did comply with its statutory and contractual obligations when it timely paid the Appellant’s medical provider eighty percent for all reasonable and necessary medical services. See Fla. Stat. §627.736(1)(a), (5)(a) (2000) (stating that an insurer shall pay eighty percent of all reasonable expenses for necessary medical services). Additionally, the record shows that the Appellant did not suffer damages from the Appellee’s reduction of payments to the medical provider as he was not pursued by his health care provider for payment of any unpaid balance nor otherwise suffer related adverse consequences. Further, there was no evidence produced by the Appellant that the Appellee had breached its promise to defend and indemnify the Appellant should he be pursued by his medical provider for any unpaid balance.
Although the Appellant cited one county case rendered within this judicial circuit that supported the proposition that the insured Plaintiff should not have to first “suffer collection efforts by a medical provider” to be able to bring suit against an insurer, (Mitch v. State Farm Mutual Auto. Ins. Co., No. 99-4033 (Fla. Pinellas Cty. Ct. October 29, 1999)), this case does not cite to any authority and is not the prevalent view. Therefore, in the present case, this Court finds that the lower court did not err in entering summary judgment in favor of the Appellee.
This Court finds the other issues raised by the Appellant are without merit. The Appellant’s right to access to court was not denied in the proceeding below as he did not suffer any damages, therefore was missing a critical element to bring a breach of contract action. See Heard v. Mathis, 344 So.2d 651 (Fla. 1st DCA 1977) (holding that an essential element of a cause of action in contract is a violation of a duty that results in damage to the plaintiff). The Appellant also cannot maintain a cause of action for breach of contract for potential damages. See id.; see also Mostoufi v. Presto Food Stores, Inc., 618 So.2d 1372, 1377 (Fla. 2d DCA 1993).
Further, the Appellee’s company policy of not paying for unreasonable or unnecessary medical expenses and its provision to defend and indemnify an insured if he or she is sued for unpaid charges, is not contrary to statutory or case law. Although the Appellant cites to case law that holds the issue of necessity of a given medical service is a question of fact for the jury, (See Derius v Allstate Indemnity Company, 723 So.2d 271 (Fla. 4th DCA 1998)), those cases are distinguishable as they dealt with the termination of benefits following an independent medical examination, which is inapplicable to this appellate case.
Therefore, it is,
ORDERED AND ADJUDGED that the Order Granting Motion For Summary Judgment, is hereby affirmed. The Appellee’s request for oral argument is denied. It is further
ORDERED AND ADJUDGED that the Appellee is entitled to reasonable attorney’s fees expended on this appeal. The trial court shall determine the amount of these fees.
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