8 Fla. L. Weekly Supp. 132a

Insurance — Personal injury protection — Payment of reduced amount of medical bill based on finding that charged amount exceeded usual, customary and reasonable charges — Insurer did not breach contract by paying amount it determined to be reasonable for a submitted expense and agreeing to defend and indemnify insured if insured is pursued for any balance resulting from such determination — Attorney’s fees — Proposal for settlement — Although rule requires that proposal state whether it includes attorney’s fees and whether attorney’s fees are part of legal claim, there is no requirement that specific amount attributable to attorney’s fees be stated — Trial court correctly granted insurer’s motion for attorney’s fees based upon insured’s rejection of proposal for settlement

CHRISTINE M. DUNN, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 99-7308-CI-88A. Opinion filed October 27, 2000. Appeals from Final Judgment, County Court, Civil Division, Pinellas County, The Honorable Henry J. Andringa. Counsel: William K. Saron, St. Petersburg, for Appellant. Anthony J. Parrino, St. Petersburg, for Appellee.

[Subsequent order at 10 Fla. L. Weekly Supp. 572a.]

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Christine M. Dunn (Appellant), from an Order granting summary judgment in favor of State Farm Mutual Automobile Insurance Company (Appellee), entered October 15, 1999, and an Order On Attorney’s Fees, entered on December 8, 1999. Upon review of the record and the briefs and being otherwise fully advised, both Orders entered by the lower court are affirmed.

It is the role of the appellate court, in reviewing a summary judgment, to view the facts in the light most favorable to the party against whom judgment is granted. See O.E. Smith’s Sons, Inc., v. George, 545 So.2d 298, 299-300 (Fla. 1st DCA 1989). The appellee, as the movant, must demonstrate conclusively that the appellants could not prevail. See Tamm v. Bradley, 696 So.2d 816 (Fla. 2d DCA 1997). Although a party moving for summary judgment has a high burden, the Appellee has met that burden in this case.

These proceedings began with a cause of action brought by the Appellant to recover personal injury protection (PIP) insurance benefits against the Appellee following a motor vehicle accident. Pursuant to the Appellant’s policy of insurance, the Appellee paid 100% of all expenses submitted with the exception of one bill that became the subject of the underlying litigation. This bill, in the amount of $500.00, was submitted directly to the Appellee by one of the Appellant’s medical providers, Dr. Leonard Strichman, following an office consultation. After reviewing the bill, the Appellee determined that $279.00 was the usual, customary and reasonable charge for the services rendered and remitted payment to Dr. Strichman for that amount. The Appellee also sent a letter to the Appellant promising that the Appellee would defend and indemnify her should she be pursued in any type of legal action for the charges in question. Although the Appellant was not pursued by Dr. Strichman for any outstanding balance, the Appellant nevertheless filed suit against the Appellee alleging that the Appellee had failed to pay covered losses under the PIP policy.

An insurance company does not breach its contract and/or an insured suffers no damages where the insurer pays the amount it determines to be reasonable for a submitted expense and agrees to defend and indemnify the insured if pursued for any balance resulting from such a determination. See McGill v. Auto. Assoc. of Michigan, 526 N.W.2d 12 (Mich. App. 1994); see also LaMothe v. Auto Club Ins. Assoc., 543 N.W.2d 42 (Mich. App. 1995); McQueen v. Allstate Indemnity Co., 6 Fla. Supp. 185 (Fla. 17th Cir. Ct. 1998); Dominguez 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); 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); Wells v. State Farm Mutual Auto. Ins. Co., No. 98-3091 (Fla. Hillsborough Cty. Ct. February 14, 2000). Further, there is no statutory requirement that the insurer must pay any and all expenses regardless of the reasonableness of such expenses. See Fla. Stat. § 627.736(1)(a), (5) (2000).

The record shows that the Appellant has not been pursued by Dr. Strichman for payment of an unpaid balance and there is also no evidence that the Appellee breached its promise to defend and indemnify the Appellant should she be pursued by her medical provider for any unpaid balance. Since the Appellant has not suffered damages from the Appellee’s reduced payment to Dr. Strichman, the Appellant is unable to recover in a contract action and the lower court properly entered summary judgment in favor of the Appellee. See Woodall v. Travelers Indemnity Co., 699 So.2d 1361 (Fla. 1997) (holding that an action for PIP benefits is a contract action); see also Heard v. Mathis, 344 So.2d 651 (Fla. 1st DCA 1977) (holding that an essential element of a cause of action in contract is violation of a duty that results in damage to the plaintiff).

The Appellant also contends that the Proposal for Settlement, proposed by the Appellee after the complaint was filed and rejected by the Appellant, was improper in that it offered one all-inclusive sum to settle, including attorney’s fees and costs. As to this issue, Rule 1.442(c)(2)(F),Proposals for Settlements, states that a proposal shall “state whether the proposal includes attorney fees and whether attorney fees are part of the legal claim.” See Fla. R. Civ. P. 1.442(c)(2)(F) (2000). Additionally, the Rule does not mandate that the total sum of the proposal be broken down into separate amounts attributable to the various claims to be covered by the offer, unless it is a joint proposal to more than one party, which is not applicable to the present case. See Fla. R. Civ. P. 1.442(c) (2000); see also Fla. R. Civ. P. 1.442(c)(3) (2000) (stating a joint proposal shall state the amount and terms attributable to each party). Therefore, the Proposal for Settlement made by the Appellee properly included attorneys fees in its inclusive amount offered and was lawfully made in this PIP action. See U.S. Security Insurance Co. v. Cahuasqui, 25 Fla. L. Weekly D701 (Fla. 3d DCA March 22, 2000) (holding that proprosals for settlement can apply in any civil action, including PIP actions). As the Appellant rejected the Appellee’s Proposal for Settlement, the lower court correctly granted the Appellee’s Motion for Attorney’s Fees. See Fla. R. Civ. P. 1.442 (2000); see also Fla. Stat. §768.79(2000).

Therefore, it is,

ORDERED AND ADJUDGED that the Order granting Summary Judgment in favor of the Appellee, is hereby affirmed. The Appellee’s request for oral argument is denied. It is further

ORDERED AND ADJUDGED that the Order on Attorney’s Fees in hereby affirmed.

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