UNITED AUTOMOBILE INSURANCE COMPANY v. KEITH H. BUCHALTER, D.C d/b/a SOUTH BROWARD CHIROPRACTIC CENTER a/a/o MARIA GARCIA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

UNITED AUTOMOBILE INSURANCE COMPANY,
Appellant,

v.

KEITH BUCHALTER, D.C., d/b/a SOUTH BROWARD
CHIROPRATIC CENTER A/A/O MARIA GARCIA,
Appellee.

No. 4D22-14

[August 3, 2022]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Robert W. Lee, Judge; L.T. Case Nos. COCE03-013859
and CACE07-33993.

Michael J. Neimand, House Counsel, United Automobile Insurance
Company, Miami.

No appearance for appellee.

KUNTZ, J.

United Automobile Insurance Company appeals the county court’s final
judgment entered in favor of the Provider, Keith H. Buchalter, D.C. d/b/a
South Broward Chiropractic Center. The court awarded the Provider
$45,000. But the claims leading to the final judgment were based on the
personal injury protection (“PIP”) statute, which did not provide a private
right of action for the claims. Therefore, we reverse the final judgment and
the related award of attorney’s fees and costs. We remand to allow the
court to award attorney’s fees and costs on a claim not included in the
judgment on appeal.

Background

In 2003, the Provider sued United for breach of contract for PIP benefits
and for a declaratory judgment about coverage. United filed an answer
and affirmative defenses and separately asked the court to dismiss the
declaratory judgment claim. The Provider voluntarily dismissed the
declaratory judgment claim.
 Three years later, the Provider amended its complaint. The amended
complaint re-asserted a declaratory judgment claim. The amended
complaint also asserted three new claims: (1) statutory violation of
insurance code sections 627.736(4)(f), Florida Statutes (2002); (2)
statutory violation of insurance code sections 627.736(6)(b) and 626.9541,
Florida Statutes (2002); and (3) statutory violations of insurance code
sections 627.736(11)(f) and 626.9541, Florida Statutes (2002).

In response, United filed its answer and affirmative defenses to the
amended complaint. United also moved to dismiss the three new claims
and the renewed claim for declaratory relief. The county court granted the
motion in part and dismissed the renewed claim for declaratory relief but
denied the motion as to the three new claims.

The Provider later moved for sanctions and to strike United’s pleadings.
The motion explained that the parties agreed to continue the adjuster’s
deposition. On the same day, United told the Provider it would not attend
the deposition and would confess judgment. The Provider’s motion stated
this was its seventh attempt to depose the adjuster with the most
knowledge of the case.

United later partially confessed judgment on Counts I and II and
stipulated to the Provider’s entitlement to attorney’s fees on those counts.
However, United again moved to dismiss Counts III, IV, and V for failure
to state a claim, arguing no private right of action existed for those claims.

The county court did not specifically decide United’s motion to dismiss.
Instead, the court granted the Provider’s motion for sanctions, struck
United’s pleadings, and entered a default judgment. The order included
an exhaustive list of United’s discovery violations. The court applied the
factors set out in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), and found
the sanction appropriate. The same day, the court entered a partial final
judgment on Count I.

The county court subsequently entered a final judgment in the
Provider’s favor on the remaining counts. The court found United’s
“violations as alleged in Counts III, IV, and V were willful and that the
maximum fine of $15,000 per count for a total of $45,000 shall be
imposed.”

2
 Analysis

To begin, we address the Provider’s argument that United waived its
argument on appeal by not challenging the sanctions order which struck
United’s answer and defenses. Although “[d]ismissal or striking of
pleadings and entry of default is the most severe sanction available and
must be commensurate with the violation,” Asper v. Maxy Aviation
Services, L.C., 915 So. 2d 271, 273 (Fla. 4th DCA 2005) (citation omitted),
we agree that our review is constrained because United did not appeal the
sanctions order. See, e.g., Robinson v. Nationwide Mut. Fire Ins. Co., 887
So. 2d 328, 330 (Fla. 2004). But that does not complete our analysis.

The default entered against United as a sanction did not authorize the
county court to enter a final judgment on counts that were legally
insufficient. Morales v. All Right Miami, Inc., 755 So. 2d 198, 198 (Fla. 3d
DCA 2000). United had a right to argue the Provider’s claims failed to
state a cause of action. Fla. R. Civ. P. 1.140(h)(2) (“The defenses of failure
to state a cause of action . . . may be raised by motion for judgment on the
pleadings or at the trial on the merits in addition to being raised either in
a motion under subdivision (b) or in the answer or reply.”); see also Bank
of N.Y. Mellon v. Condo. Ass’n of La Mer Estates, Inc., 175 So. 3d 282, 286
(Fla. 2015). 1 So while we do not review the sanctions order and
subsequent default, we conclude United did not waive its challenge as to
the sole counts at issue in this appeal.

Turning to those counts, United maintains that the Provider
impermissibly brought bad-faith claims based on sections 627.736(4)(f),
(6)(b), and (11)(f), Florida Statutes (2002). As these sections do not provide
for damages, the Provider sought statutory fines under the Unfair
Insurance Trade Practices Act. § 626.9521(2), Fla. Stat. (2002). United
argues the statutory remedy for a first-party bad-faith action is found in
section 624.155, Florida Statutes (2002). We agree.

Whether PIP includes the right for an individual insured to seek
sanctions against an insurance company depends on legislative intent.
United Auto. Ins. Co. v. A 1st Choice Healthcare Sys., 21 So. 3d 124, 128
(Fla. 3d DCA 2009) (citation omitted). As our Florida Supreme Court
instructs, “legislative intent . . . should be the primary factor considered
by a court in determining whether a cause of action exists when a statute
does not expressly provide for one.” Murthy v. N. Sinha Corp., 644 So. 2d

1In Bank of New York Mellon, 175 So. 3d at 286, the court held that a judgment
entered on a claim that fails to state a cause of action is voidable, not void.

3
983, 985 (Fla. 1994) (citations omitted). Legislative intent is found in the
“comprehensive statutory scheme.” Day v. Sarasota Drs. Hosp., Inc., No.
8:19-CV-1522-T-33TGW, 2019 WL 11499414, at *2 (M.D. Fla. Sept. 16,
2019) (citation omitted). “Absent a specific expression of such intent, a
private right of action may not be implied.” A 1st Choice, 21 So. 3d at 128
(citation omitted).

For example, in A 1st Choice, the Third District concluded section
627.736(4)(b) did not provide a private right of action against an insurer
that did not submit an explanation of benefits within the thirty-day
deadline. 21 So. 3d at 128. The court found “nothing in the text of section
627.736(4)(b) from which one c[ould] deduce that the legislature intended
an insured have a private right of action against an insurer for failure to
provide an EOB.” Id. at 129. The court explained “the statute only
authorizes one cause of action: a cause of action for personal injury
protection benefits.” Id.; see also United Auto. Ins. Co. v. Coastal Wellness
Ctr., Inc., 28 So. 3d 246, 246 (Fla. 4th DCA 2010) (citing A 1st Choice, 21
So. 3d at 124, and reversing the lower court’s award of damages for the
insurer’s failure to timely mail the EOB).

Likewise, here, the Provider stated claims against United for alleged
general business practices that included not paying valid claims, not
paying valid claims until receiving a demand letter, and requesting
documentation without a reasonable basis to do so. See §§ 627.736(4)(f),
(6)(b), and (11)(f), Fla. Stat. (2002). But no language in those three sections
expressly allows for a private right of action. Rather, section 624.155,
Florida Statutes (2002), addresses who may bring a civil action against an
insurer and the basis for those actions. Section 624.155 lists the exact
subsections within Florida’s Unfair Insurance Trade Practices Act that
support a civil remedy. See § 624.155(1)(a)1., Fla. Stat. (2002). The civil
remedy provision allows “any person” to bring a civil action against the
insurer for violating section 626.9541(1)(i), (o), or (x)—i.e., unfair claim
settlement practices, illegal dealings in premiums, and the refusal to
insure. Id. Thus, the legislature limited the sections for which a person
has a private remedy.

Viability of the Provider’s claims requires that the claim be found in the
statute. See, e.g., Buell v. Direct Gen. Ins. Agency, Inc., 267 Fed. Appx. 907
(11th Cir. 2008). But the Provider relied on sections of the PIP statute that
do not create a private remedy. The remedies sought by the Provider are
not among those permitted by the legislature. So the county court erred
when it denied the Insurer’s motion to dismiss those counts and, as a
result, when it entered judgment on those counts.

4
 Our reversal of the judgment also requires reversal of the county court’s
fee award. On this issue, we remand for further proceedings. Separate
from the three claims for which no cause of action existed, the insurer
confessed judgment on Count I, and the court entered a partial final
judgment on that count. In its confession of judgment, United stipulated
to the Provider’s entitlement to attorney’s fees and costs. Later, the partial
final judgment reserved jurisdiction to award attorney’s fees and court
costs. On remand, subject to the requirements of the Florida Rules of Civil
Procedure and other applicable law, the court may award the Provider its
attorney’s fees and costs if those attorney’s fees and costs relate to Count
I.

Conclusion

The county court’s final judgment is reversed. The case is remanded
for the entry of an amended award of attorney’s fees and costs limited to
Count I of the Provider’s complaint.

Reversed and remanded.

DAMOORGIAN and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5