13 Fla. L. Weekly Supp. 188b
Insurance — Personal injury protection — Declaratory action — Medical provider’s right to obtain from insurer copies of all examination under oath notices and proofs of mailing is proper subject of declaratory action — Motion to dismiss denied
AMERICAN HEALTH AND REHAB, INC., a Florida Corporation (assignee of Davis-Palmer, Nadine), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-00998 COSO 62. October 19, 2005. Giselle Pollack, Judge. Counsel: Russel Lazega, The Law Office of Russel Lazega, North Miami, for Plaintiff. Matt Hellman, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS DECLARATORY RELIEF ACTION
This action was heard on Defendant’s Motion to Dismiss Declaratory Relief Action and the Court having heard argument and being otherwise advised in the premises finds as follows:
Findings of Fact: This is an action for declaratory relief stemming from a P.I.P. claim. Specifically, Plaintiff, an assignee medical provider, has brought suit seeking a declaration as to its right to receive copies of all examination under oath (“EUO”) notices and proof of mailing from Defendant. Defendant maintains that only the patient/assignor is entitled to this information and asserts that Declaratory Relief is improper as the Plaintiff is seeking a determination of factual issues which could be resolved by simply filing a Breach of Contract Action for failure to pay P.I.P. Benefits or contacting the patient. Plaintiff responds that the Defendant is in the best position to furnish this information and Plaintiff cannot properly bring a breach on contract action until it has confirmed that a condition precedent to suit (the patient’s submission to a timely and properly noticed EUO) does not first need to be satisfied. To determine this, Plaintiff maintains it requires the notifications and proof of mail to confirm whether the Examination Under Oath was timely and properly noticed and scheduled.
Conclusions of Law: The Court finds that the matter is a proper subject for Declaratory Relief. An action for Declaratory Relief is not barred simply because issues of fact may arise. See Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5 (Fla. 2004). The pivotal question is whether there is a dispute and doubt as to a party’s rights and obligations. In the instant case, Plaintiff claims standing to bring an action for P.I.P. benefits against Defendant by way of an assignment of benefits from Defendant’s insured. However, a party may be barred from bringing suit for breach of an insurance contract (and arguably even subject to sanctions pursuant to F.S. s. 57.105) if the insured has not first complied with all required conditions precedent. Amador v. United Auto. Ins. Co., 748 So. 2d 307 (Fla. 3rd DCA 1999); January v. State Farm Ins. Co., 838 So. 2d 604 (Fla. 4th DCA 2003). If however, the insurer is itself already in breach of the contract, then the insured (or assignee) is free to file suit against the insurer, notwithstanding the alleged failure to attend the examination under oath. Id. The only way to know is to see the examination under oath notices. Defendant contends this is solely the right of the insured. Plaintiff contends that its assignment of benefits confers standing to obtain this information. The Court finds this dispute is a proper subject for declaratory relief.
Accordingly, Defendant’s Motion to Dismiss is DENIED.
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