13 Fla. L. Weekly Supp. 611a
Insurance — Personal injury protection — Action seeking declaratory decree that treatment was reasonable, related and necessary and that insurer’s common law right to unilaterally rescind PIP coverage for material misrepresentation has been abrogated by statutes — Insurer’s affirmative defense alleging that medical provider failed to state cause of action for declaratory decree that treatment was reasonable, related and necessary is stricken — Declaratory judgment action is appropriate to resolve questions of fact upon which rights and obligations under insurance policy depend — Misrepresentations — Rescission of policy — There is no need for declaratory relief on whether statutes are in derogation of common law right of rescission where insurer elected to ratify validity of policy by not rescinding policy after learning of possible material misrepresentation
CICERO ORTHO-MED CENTER, as assignee of Efrain Hernandez, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 04-00082 SP 25 (1). March 6, 2006. Andrew S. Hague, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Mitzi Espino, Office of General Counsel, for Defendant.FINAL DECLARATORY DECREE
THIS ACTION came before this Court for jury trial on the 16th day of February 2006 and Court, upon reviewing the court file and hearing arguments of counsel, hereby makes the following findings of fact and law:
1. This is an action for declaratory relief governed by the Florida Declaratory Judgment Act, § 86.011, et seq., Florida Statutes, (2005).
2. Plaintiff seeks a declaratory decree that the claimed loss is a covered loss, i.e., reasonable, necessary and related, under the policy and that Defendant’s common law right to unilaterally rescind personal injury protection coverage for material misrepresentation is abrogated by §§ 627.730-7405, Florida Statutes, (2005).
3. At all times material, the claimant, Efrain Hernandez, was insured for personal injury protection benefits by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, under a policy of insurance required by §§ 627.730-7405, Florida Statutes, (2005). The policy effective dates is December 22nd, 2002 through December 22nd, 2003.
4. The claimant was involved in a motor accident on or about June 2nd, 2003; thereafter, Defendant received notice of a covered a loss upon receipt of Plaintiff’s bill in the sum of $400.00 for services rendered to Efrain Hernandez.
5. Defendant denies in the answer that claimed loss is covered by the policy on the grounds that the loss (i.e., bill) is not reasonable, medically necessary nor related.
6. Plaintiff moved for summary judgment on reasonable, necessary and related; which was granted by this Court on January 26th, 2006.
7. As an affirmative defense, Defendant alleges that Plaintiff fails to state a cause of action for declaratory relief because reasonable, necessary and related is a question of fact and an action for declaratory relief is inappropriate to resolve questions of fact. Defendant relies on Cruz v. General Ins. Co., 586 So.2d 91 (Fla. 3rd DCA 1991) where the Third District relied on Columbia Cas. Co. v. Zimmerman, 62 So.2d 338 (Fla. 1952) to affirm dismissal of a declaratory judgment action on reasonable, necessary and related; Cruz, supra, however, is no longer controlling law where the Supreme Court in Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5 (Fla. 2005) expressly receded from Columbia Cas. Co., supra,and cases that relied upon it; the Supreme Court in Higgins, supra,held that a declaratory judgment action is appropriate to resolve questions of fact upon which rights or obligations under an insurance policy depend; therefore, Defendant’s affirmative defense for failure to state cause of action is stricken. The mere fact that Plaintiff can sue for breach of contract to recover the insurance proceeds is not grounds for dismissal. See § 86.111, Florida Statutes,(2005) (“The existence of another adequate remedy does not preclude judgment for declaratory relief.”) (emphasis added).
8. The Court, however, finds there is no practical need for declaratory relief on whether the Florida statutes are in derogation of Defendant’s common law right to unilaterally rescind PIP coverage; here, UNITED elected to ratify the validity of the policy by not rescinding the policy after learning of a possible material misrepresentation. See Miami Chiropractic Assoc’ a/a/o Yvros Perpignan v. United Auto. Ins. Co., Case No.: 03-3042 CC 25 (2) [13 Fla. L. Weekly Supp. 273a] (Fla. 11th Jud. Cir. Cty. Ct. 2006) (King, J.) decided on January 26th, 2006. (Explaining the unilateral rescission, i.e., rescission at law, requires notice and tender of all premiums paid to the insured otherwise, the policy is ratified.)
9. Accordingly, there is no question of fact for the jury to decide in this action.
THEREFORE, it is hereby ORDERED & ADJUDGED by this Court that
The claimed loss of Plaintiff in the sum of $400.00 is reasonable, necessary and related; therefore, said loss is covered by policy; Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, is liable on the policy for said loss and statutory interest under § 627.736(4), Florida Statutes, (2005). Declaratory relief as to material misrepresentation is DENIED where there is no practical need for declaratory relief on that issue because Defendant ratified the policy. The Court shall reserve jurisdiction to award Plaintiff complete relief under § 86.061, Florida Statutes, (2005) as may be necessary to afford Plaintiff complete relief and award Plaintiff attorney’s fees & taxable costs pursuant to § 627.428, Florida Statutes, (2005) for prosecution of this action.
* * *
