13 Fla. L. Weekly Supp. 162a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 1086a
Insurance — Personal injury protection — Declaratory judgment — Complaint alleging PIP coverage was denied because truck driven by insured at time of accident was not insured vehicle under policy is improperly framed as declaratory action where there are factual questions to be resolved, and complaint does not allege that there was doubt concerning ambiguous contractual provision requiring judicial interpretation
GLENN KOEHLER, Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 05-SC-2973. October 28, 2005. Antoinette D. Plogstedt, Judge. Counsel: George Milev, Adams & Diaco, P.A., Tampa. Thomas Player.
VACATED. 13 Fla. L. Weekly Supp. 1086a
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court on Defendant’s Motion to Dismiss Plaintiff’s Petition for Declaratory Judgment on October 14, 2005, the Court having heard arguments by counsels for Plaintiff and Defendant and otherwise being fully advised in the premises, hereby
FINDS, ORDERS AND ADJUDGES as follows:
1. Plaintiff filed a one-count petition/complaint for declaratory judgment.
2. The complaint claimed that Plaintiff has made demand for No-Fault benefits for reasonable, necessary, and related medical, rehabilitative, and remedial treatment.
3. The complaint further claimed that Defendant has denied Plaintiff’s claim for personal injury protection coverage since the 1966 Ford truck driven by Plaintiff at the time of accident was not an insured vehicle under the policy.
4. Based solely on the four corners of the complaint, there are factual questions relating to the denial of coverage.
5. “Questions of fact will not support a declaratory relief action”. Cruz v. Union General Ins., 586 So. 2d 91 (Fla. 3rd DCA 1991).
6. Plaintiff’s complaint is improperly framed as a declaratory action as Plaintiff has failed to adequately allege that there was a doubt concerning a particular ambiguous contractual provision of the policy that requires judicial interpretation.
7. The lawsuit could have been filed as a breach of contract action for PIP benefits under the PIP Statute, which is clearly what it is.
WHEREFORE, Defendant’s Motion to Dismiss Plaintiff’s Petition for Declaratory Judgment is hereby GRANTED without prejudice. The Court reserves jurisdiction to rule on Defendant’s 57.105 Motion for Sanctions.
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