18 Fla. L. Weekly Supp. 229a
Online Reference: FLWSUPP 1802RIVE
Insurance — Personal injury protection — Declaratory action is appropriate vehicle for relief in PIP matter — Medical provider/assignee can bring declaratory relief action — Possibility that standard PIP action might follow declaratory action does not make dismissal of declaratory action appropriate, although it may be basis to dismiss subsequent suit — Motion to dismiss is denied
GABRIEL RIVERA, an insured individual by and through his assignee, COMPLETE MEDICAL THERAPY SERVICES, Inc., Plaintiff, v. FIRST ACCEPTANCE INSURANCE COMPANY, INC., a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 10-CC-018984, Division K. November 2, 2010. Scott A. Farr, Judge.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S PETITION FOR DECLARATORY RELIEF
THIS MATTER having been heard by the Court, and the Court having read the pleadings, motion and cases submitted by the parties, it is, hereby,
ORDERED AND ADJUDGED:
1. The Defendant has filed the above referenced motion to dismiss in which it raises three issues: (1) whether the complaint states a cause of action in that it fails to set forth an actual cause or controversy, (2) whether the complaint fails to join an indispensable party, namely, the insured, and (3) whether the complaint violates Section 627.736(15), Florida Statutes.
2. Subsumed within the first issue is the question of whether a declaratory judgment action is an appropriate vehicle for relief in a PIP matter. The Court’s review of Florida case law indicates the answer to this question is yes. Tavares v. Allstate Insurance Company, 342 So. 2d 551 (Fla.3d DCA 1977) and cases cited therein. Taking the well plead allegations in Petioner’s complaint as true, the Court finds the petition for declaratory relief does, on its face, state a cause of action for declaratory relief.
3. With respect to the second issue, it is noted that in every case reviewed by the Court in addressing this matter, the parties were the insured and the insurer. In no case reviewed by the Court was an assignee a party to the lawsuit. However, nothing in any of the appellate opinions gives any basis to conclude an assignee alone cannot bring the declaratory action upon an appropriate set of facts. Again, taking the well plead matters in the complaint as true, there has been no failure to join an indispensable party.
4. Plaintiff and Defendant urge different interpretations of Section 627.736(15). Defendant’s position is that since a standard PIP action might follow the declaratory action, the declaratory action must be dismissed. Plaintiff suggests the statute merely requires bringing all claims for payment in one suit, as opposed to filing a separate lawsuit for each date of service, a matter not at issue here. Even assuming Defendant is correct in anticipating a subsequent lawsuit, dismissal of this suit is not appropriate. The argument would be that the subsequent suit may be dismissed, although this Order should in no way be interpreted as ruling on that issue. It is Plaintiff’s prerogative to accept that risk.
WHEREFORE, Defendant’s Motion to Dismiss the Petition for Declaratory Relief is DENIED.
