12 Fla. L. Weekly Supp. 182a
Insurance — Declaratory judgments — Standing — Plaintiff provider sufficiently pled claim for declaratory relief — Insurer’s contention that plaintiff lacked standing and failed to comply with presuit requirements by failing to provide assignment of benefits with the demand was countered by plaintiff’s assertion that notice of intent sent to insurer prior to suit reflected fact that individual had been involved in head-on collision, was experiencing altered state of consciousness and had been drinking, all of which rendered him unable to sign any paperwork at scene of accident — Further, insurer did not respond to notice of intent to initiate litigation and raised standing issue following filing of an affidavit of the injured individual attesting to his intent to assign his rights at time of accident
RURAL METRO AMBULANCE, INC., as assignee of Joey Fanning, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-751. September 31, 2004. Carmine Bravo, Judge. Counsel: Rutledge M. Bradford, Orlando. Jeffery Regenstreif, Orlando.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNT II OF THE PLAINTIFF’S COMPLAINT(FOR DECLARATORY RELIEF)
THIS MATTER having come before this Court on Defendant’s Motion to Dismiss Count II of the Plaintiff’s Complaint for Declaratory Relief and this Court having heard arguments of counsel and being otherwise fully advised, the following is noted:
FACTUAL BACKGROUND
1. The Plaintiff filed a two count complaint, for breach of contract and declaratory relief, pursuant to Chapter 86, Florida Statutes.
2. The Defendant filed a Motion to Dismiss Count II (for declaratory relief) asserting that there is no statute that needs to be construed and no viable controversy under which the court can provide a remedy. The Defendant also argues that neither 627.4137 or 627.736 apply to first party causes of action.
3. Additionally, the Defendant argues that the Plaintiff lacks standing to bring any claim and failed to comply with the pre-suit requirements by failing to provide an assignment of benefits with the demand.
4. The Plaintiff asserts that the four corners of the complaint recite a viable cause of action under Chapter 86, Florida Statutes and that the notice of intent to initiate litigation sent to the Defendant prior to filing suit reflected the fact that the individual had been involved in a head on collision, was experiencing an altered state of consciousness and had been drinking, all of which rendered him unable to sign any paperwork at the scene of his accident. Further, the Defendant did not respond in any fashion to the notice of intent to initiate litigation and raised the standing issue following the filing of an affidavit of the injured individual attesting to his intent to assign his rights at the time of the accident. Based on the foregoing, it is
ORDERED AND ADJUDGED that:
1. Defendant’s Motion is denied. The Plaintiff has sufficiently plead it’s claim for declaratory relief.
2. The Defendant shall provide within 10 days the date the EUO was taken of Joey Fanning. Whether the Defendant will be required to produce the EUO will be addressed at a later hearing.
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