10 Fla. L. Weekly Supp. 673a
Insurance — Personal injury protection — Coverage — Unregistered medical provider — Error to grant motion to dismiss on ground that clinic must allege in its complaint that it was registered with Department of Health — Consideration of evidence of clinic’s date of registration impermissibly extended beyond four corners of complaint — Evidence should be considered as affirmative defense or in motion for summary judgment, not motion to dismiss
RADIOLOGY INTERPRETATION, INC., a/a/o MARIA SERRANO, Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-460AP. L.C. Case No. 02-006905SP25. July 29, 2003. On appeal from the County Court, Miami-Dade County, Wendell M. Graham, J. Counsel: Denis Donet, Garcia-Vidal & Donet, L.L.P., for Appellant. Douglas H. Stein, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, for Appellee.
(Before LEON M. FIRTEL, LAWRENCE A. SCHWARTZ, DAVID H. YOUNG, JJ.)
(LAWRENCE A. SCHWARTZ, J.) On June 28, 2002, Appellant filed an action against Appellee for failure to pay No-Fault benefits due under the policy of the insured, Maria Serrano, within thirty (30) days as required by §627.736(4)(b), Fla. Stat. (1997). Appellant’s complaint alleged the following: The action did not exceed five thousand dollars ($5,000.00) and was within the court’s jurisdiction; Maria Serrano was a resident of Miami-Dade County and insured at all times material; Appellee was a corporation licensed to transact business in Florida; Serrano sustained injuries from a motor vehicle accident on November 7, 2001; Appellee had notice of the accident claims; Reasonable medical bills incurred by Serrano were a direct and proximate result of her car accident injuries; Testing was medically necessary to properly diagnose Serrano’s injuries from the November 7, 2001 accident; Serrano executed an assignment of benefits to Appellant on January 10, 2002; Appellant properly submitted the claim and performed all conditions precedent to recover benefits; Appellant is entitled to bring suit as an assigned beneficiary under the contract of insurance; Appellee issued a PIP policy in accordance with §§627.730-627.7405, Fla. Stat. (2001); The policy was in full force and effect at the time of the accident; Serrano furnished Appellee with a properly executed application for no-fault benefits and medical authorizations; Serrano and Appellant have performed all conditions precedent to recover benefits; Appellee did not pay submitted benefits within (30) days as required by § 627.736(4)(b), Fla. Stat. (2001); Appellee failed to pay Serrano’s covered losses despite absence of reasonable proof to deny payment; Appellant retained counsel who agreed to accept any court awarded fee; Appellee failed to pay any statutory interest penalties and attorney fees; and, Appellant demanded a judgment for PIP benefits, extended medical payment benefits, pre-judgment interest, costs and attorney’s fees pursuant to § 627.428, Fla. Stat. (1982); and, legal assistant fees pursuant to § 57.104, Fla. Stat. (1987).
Appellee responded by filing a motion to dismiss Appellant’s complaint for lack of standing on August 26, 2002. Appended to its motion, was a website print out of The Florida Department of Health, Health Licensee and Continuing Education Providers Information. This print out lists the original issue date of Appellant’s health license as April 16, 2002. Appellee furthered its response by filing a motion for sanctions and motion to dismiss Appellant’s complaint pursuant to §57.105, Fla. Stat. (2002) on September 6, 2002. Then, on September 7, 2002, Appellee filed a memorandum of law in support of dismissing Appellant’s complaint with prejudice. A hearing on this motion was convened on September 30, 2002, after which the lower court dismissed the action.
The standard of review on appeal of an order dismissing a complaint is de novo, since a motion to dismiss involves an issue of law. Florida Department of Health and Rehabilitative Services v. S.A.P., 835 So. 2d 1091 (Fla. 2003); Taylor v. City of Riviera Beach, 801 So. 2d 259, 262 (Fla. 4th DCA 2001). To state a cause of action the complaint must contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief and (3) a demand for judgment for the relief to which he deems himself entitled. Fla. R. Civ. P. 1.110. Thus, this Court must examine Appellant’s complaint to see if it adheres to Fla. R. Civ. P. 1.110. Pizzi v. Central Bank and Trust Company, 250 So. 2d 895, 897 (Fla. 1971).
A review of the record indicates that Appellant’s complaint comported with the requirements in Fla. R. Civ. P. 1.110. The complaint contains a short and plain statement of the grounds upon which the court’s jurisdiction depends, which is stated in paragraph one. In addition, the complaint contains a short and plain statement of the ultimate facts in paragraphs two (2) through thirteen (13) indicating that Appellant is entitled to relief. Furthermore, the complaint contains a demand for judgment in its wherefore clause. Given the existence of all of this information, Appellant’s complaint should not have been dismissed.
The lower court may have mistakenly dismissed this action based on Appellee’s assertion that a clinic must allege in its complaint that it was registered with the Florida Department of Health in compliance with § 456.0375(2)(a), Fla. Stat. (2001). The lower court’s consideration of this evidence extended beyond the “four corners of the complaint.” It is well established that “the complaint” is all that may be considered on a motion to dismiss for failure to state a cause of action. Pizzi, 250 So. 2d at 897. The above evidence is the type that should be considered as an affirmative defense in Appellee’s answer, or in a motion for summary judgment, not a motion to dismiss. Given this analysis, this Court must reverse the lower court’s order dismissing the complaint.
As the prevailing party, Appellant is statutorily entitled to Attorney’s Fees and Costs, pursuant to § 627.428, Fla. Stat. (1997), provided it prevails on remand.
FOR THESE REASONS, the order dismissing the complaint in favor of the Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (LEON M. FIRTEL and DAVID H. YOUNG, JJ., concur.)
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