12 Fla. L. Weekly Supp. 387a
Insurance — Personal injury protection — Coverage — Denial — Explanation of benefits — Motion to dismiss count seeking declaratory relief, claiming insured is in doubt as to whether there is insurance coverage due to insurer’s failure to provide EOB, is denied where count seeks resolution of something more than purely factual issue
ELIAS GARCIA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-12946 COCE 53. January 31, 2005. Robert W. Lee, Judge. Counsel: Cris Boyar, Margate. Leandro E. Lissa, Coral Gables.
ORDER DENYING DEFENDANT’S SECOND MOTION TO DISMISS COUNT II OF PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE came before the Court for hearing on January 28, 2005, and the Court’s having reviewed the Motion and entire Court file; heard argument of counsel; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Count II of the Amended Complaint seeks declaratory relief, with the Plaintiff’s claiming that he is in doubt as to whether there is insurance coverage due to the Defendant’s alleged failure to provide an understandable, specific explanation of benefits setting forth the reasons for denial of coverage. The Defendant claims that this Count should be dismissed because the insurer is not required to provide an explanation of benefits under the P.I.P. statute. Because the allegations in Count II of the Amended Complaint seek resolution of something more than a “purely factual issue”, the Court finds that Count II in the Amended Complaint for declaratory relief is sufficiently pled. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Second Motion to Dismiss Count II of Amended Complaint is DENIED. The Answer to Plaintiff’s Amended Complaint filed by Defendant on December 27, 2004 hereby stands as Defendant’s answer to the Amended Complaint.
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