11 Fla. L. Weekly Supp. 1053a
Declaratory judgments — Insurance — Personal injury protection — Action seeking declaration that insurer must provide copy of wife’s insurance policy to husband who is named insured and filed PIP suit on behalf of son — Error to grant motion to dismiss petition for declaratory decree on grounds that complete copy of policy was provided to petitioner when coverage was issued, petitioner could get copy from insurance agent, or petitioner could have filed motion to compel in PIP case instead of declaratory judgment action where all three arguments went outside four corners of petition — Further, two of insurer’s arguments were affirmative defenses that cannot be considered in ruling on motion to dismiss — Case or controversy between parties did exist where plaintiff sought declaration that he had legal right to receive copy of policy which insurer continually refused or failed to provide — Reversed and remanded
LOUIS CURREN, SR., Appellant, v. PROGRESSIVE EXPRESS INSURANCE CO., Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 03-65-AP. L.T. Case No. 03-CC-890. August 27, 2004. Appeal from County Court for Seminole County, Honorable Ralph E. Eriksson, Judge. Counsel: Lee M. Jacobson, Law Offices of Michael B. Brehne, P.A., Maitland, for Appellant. Valeria Hendricks, Tampa, for Appellee.
(McIntosh, J.) Curren appeals a final order of the trial court dismissing Curren’s petition for a declaratory decree on the ground that the petition was asking the court for legal advice, not to determine a legal right.
On or about November 17, 2000, the appellant, Louis Curren, Sr., along with his wife and minor son, Louis Curren Jr., were involved in an automobile accident. At the time of the accident, Curren’s wife was driving the vehicle and was allegedly negligent in the operation of the vehicle. On April 5, 2002, Curren filed a PIP suit on behalf of his son styled Louis Curren, Sr., as parent and natural guardian of Louis Curren, Jr. v. Progressive Express Insurance Company, Case No. 02-SC-1074-19. Along with the complaint in that case, Curren served a request to produce requesting that Progressive produce a copy of his wife’s insurance policy.
On March 27, 2002, Curren’s attorney requested a copy of the policy from Progressive to determine if he could recover bodily injury benefits from his wife’s insurance, of which he is a named insured. Curren wanted a copy of the policy to determine if there was a husband/wife exclusion in the policy. On the same day, Progressive responded by providing a copy of only the declarations page of the insurance policy, stating that Curren should notify Progressive if he desired a complete copy of the policy. Curren subsequently requested a complete copy of the policy numerous times via fax and telephone, but to no avail. By February 25, 2003, Curren still had not received a complete copy of the insurance policy. Curren filed the present declaratory judgment action on March 3, 2003, seeking a declaratory decree that Progressive must provide a copy of the insurance policy to him. On March 5, 2003, Curren filed an amended petition for declaratory judgment seeking the same declaratory relief.
In its Motion to Dismiss, Progressive raised the following arguments:
1) A complete copy of the original policy was provided to Curren when he was issued coverage.
2) Curren could have gone to his insurance agent to get a copy of the insurance policy.
3) Curren should have filed a motion to compel in the PIP case, instead of filing the declaratory judgment action.
Progressive contended that, based upon the above three arguments, no case or controversy between the parties existed.
In ruling on a motion to dismiss, the trial court is limited to determining whether the petition states a cause of action upon which relief may be granted. Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996). In making this determination, the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations. City of Gainesville v. State, Dept. of Transp.,778 So. 2d 519 (Fla. 1st DCA 2001); Cintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 860-61 (Fla. 5th DCA 1996).
All three of Progressive’s arguments in the motion to dismiss went outside the four corners of the amended petition for declaratory decree. The existence of the PIP case was not alleged in the declaratory judgment action. Progressive’s first and second arguments were affirmative defenses; therefore, the trial court could not consider these arguments in ruling on the motion to dismiss.
Curren’s petition asks the court for a declaration that he has legal right to receive a copy of the policy from Progressive. Because the declaratory judgment action was based on the claim that Progressive had continually refused or failed to provide a copy of the policy to Curren, a case or controversy between the parties did exist.
REVERSED and REMANDED for further proceedings consistent with this opinion.
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