13 Fla. L. Weekly Supp. 1010a
Insurance — Personal injury protection — Declaratory judgment — Medical provider’s right to receive explanation of benefits — Motion to dismiss count seeking declaratory relief regarding insurer’s alleged failure to provide EOB is denied
CORAL SPRINGS PHYSICIANS ASSOCIATES, a/a/o DEMETRIO BALDOVINOS, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-9906 COSO (62). June 13, 2006. Julio E. Gonzalez, Jr., Judge. Counsel: Russel Lazega, Law Office of Russel M. Lazega, N. Miami Beach, for Plaintiff. T. Roger White, Jr., Office of the General Counsel, United Automobile Insurance Company, Coral Gables, for Defendant.ORDER
THIS CAUSE having come on to be heard on Defendant’s Motion to Dismiss Count II Declaratory Relief, and the Court having heard argument of counsel, and being advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED said Motion be, and the same is hereby Denied.
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[Editor’s Note: below is the Motion to Dismiss Count II of Complaint, for informational purposes]
DEFENDANT’S MOTION TO DISMISS COUNT II OF COMPLAINT
COMES NOW, the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, by and through its undersigned counsel and pursuant to Florida Rules of Civil Procedure 1.420 and 1.110, and hereby moves this Court to Dismiss Count II of Plaintiff’s Complaint, and as grounds therefore states:
1. On or about January 5, 2006, the Plaintiff served a Complaint on the Defendant seeking PIP benefits pursuant to a policy of automobile insurance issued by Defendant to Plaintiff.
2. Plaintiff has included Count II in his Complaint as a separate cause of action that seeks a Declaratory Judgment.
3. Claimant allegedly received medical services from CORAL SPRINGS PHYSICIANS ASSOCIATES as a result of an automobile accident that allegedly occurred on or about July 11, 2005.
4. Plaintiff is claiming entitlement to PIP benefits that allegedly accrued as a result of said accident.
5. The gravamen of Count I of Plaintiff’s Complaint seeks a declaratory judgment based upon Defendant’s alleged failure to comply with F.S. 627.736(4)(b).
6. The only issues in the case at bar involve the Plaintiff’s claim of alleged breach of contract and Defendant’s affirmative defenses.
7. Moreover, Plaintiff cannot assert in good faith that it is in doubt as to its rights based upon whether the Defendant has allegedly failed to comply with F.S. 627.736(4)(b) based upon controlling Circuit caselaw on this very issue.
8. Moreover, the purpose of declaratory action is to afford the parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Coalition for Adequacy and Fairness in School Funding, Inc., v. Lawton Chiles, 680 So.2d 400, 21 Fla. L. Weekly S271 (Fla. 1996); Santa Rosa County v. Administration Com’m, Div. Of Administrative Hearings, 661 So.2d 1190, 20 Fla. L. Weekly S536 (Fla. 1995).
9. Plaintiff is not entitled to any type of Declaratory Relief, as there is no “bona fide, actual, present practical need for the declaration,” and Plaintiff’s allegations in Count II do not satisfy the required elements necessary to state a cause of action for declaratory relief as set forth in Florida Statutes §§ 86.021 and 86.111. May v. Holley, 59 So. 2d 636, 639 (Fla. 1952).
10. Furthermore, Plaintiff has included an action for Breach of Contract for failure to comply with Florida Statutes 627.736(4)(b) as Count I of its Complaint. Plaintiff asserts a statutory right to receive an “itemized specification” pursuant to the clear language of the statute.
11. Notwithstanding the language in Count I and the controlling Circuit Decision on this very issue, Plaintiff misleads this Court into believing that it is in “doubt” as to its rights pursuant to 4(b). It is also important to note that Plaintiff’s counsel (The Law Office of Russel Lazega) was the Plaintiff’s attorney in that Circuit case.
12. Based upon the allegations pled in Count II of Plaintiff’s Complaint, Plaintiff has not demonstrated a sufficient right to declaratory relief and cannot assert a need for present declaration in good faith.
13. As a result of the foregoing, no legitimate cause of action exists, and Defendant is entitled to have Count II dismissed with prejudice.
WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss Count II with prejudice, and provide any such additional remedy as this Court or justice so requires.
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