13 Fla. L. Weekly Supp. 87b
Insurance — Personal injury protection — Coverage — Declaratory judgments — Count seeking declaration of whether PIP statute covers EMG or is applicable to NCV but not EMG and whether medical provider is limited to certain coverage amounts under statute is not appropriate — Under facts and circumstances of case, declaratory relief sought in this count is not appropriate — Motion to dismiss this count is granted
NORTHEAST FLORIDA NEUROLOGY CLINICS, INC., (as assignee for Patricia Brown), Plaintiff, v. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 04-SC-8641, Division I. October 4, 2005. Pauline M. Drayton, Judge. Counsel: Kelly B. Hampton, The Gallagher Law Firm, Jacksonville, for Plaintiff. Patrick J. Snyder, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COUNT II FOR FAILURE TO STATE A CAUSE OF ACTION
This Court having had the opportunity to review the facts and evidence in this case, makes the following finds of law and fact.
This Court is asked to consider whether or not the plaintiff should be allowed to petition this Court for a declaratory judgment prior to the determination of factual questions in this case. The Plaintiff’s Amended Complaint seeks declaratory relief and attorney’s fees for an alleged doubt regarding the meaning of the provisions of Florida Statute Section 627.736. The Plaintiff’s Complaint states that the Declaratory Judgement Act, Chapter 86, Florida Statute is appropriate as the Plaintiff is seeking this judgment to clarify the rights of the Plaintiff under Florida Statute Section 627.736.
The Plaintiff cites as supporting case law, Higgins vs. State Farm, 894 So. 2d 5 (2004). In that case, the Court held that an insured individual could bring a declaratory relief action even if a factual question was to be determined. The Court added that the use of the word “or” between Fla. Stat. Ch. 86.011(1) clearly indicates that the Courts have the general power to issue declaratory judgments not only in suits seeking a determination of the existence or nonexistence of any immunity, power, privilege, or right but also in suits solely seeking a determination of any fact affecting the application of an immunity, power, privilege, or right.
The Defendant has filed a Memorandum of Law citing numerous cases in opposition to the Plaintiff’s Motion. The Defendant argues that the Plaintiff failed to allege any particular provision of the insurance contract or statute as ambiguous and/or requires court interpretation. The Defendant argues that the Plaintiff is merely attempting to obtain the same relief sought in Count I based on a breach of a contract in violation of Florida Statute Section 627.736. The Defendant further argues that Count II which seeks declaratory relief is unnecessary, unwarranted, and should be dismissed. Cruz v. Union General Inc., 586 So. 2d 91 (Fla. 3d DCA 1991), Travelers Inc. Co. v. Emery, 579 So. 2d 798, 801 (Fla. 1st DCA 1991), Medical Center Health Plan v. Brick, 572 So. 2d 548, 551 (Fla. 1st DCA 1990), Corp. v. White Constr. Co., 206 So. 2d 220, 221 (Fla. 1st DCA 1968) and Swan v. Reliable Ins. Co., 200 So.2d 862, 863 (Fla. 3d DCA 1967).
It is clear that Section 627.736 is the controlling statute. The Plaintiff alleges that unless the Court enters a declaratory judgement, the dispute of coverage would be in doubt as to whether or not the statute covers EMG and avers that the statute is applicable to the NCV but not EMG. There is also a factual question clearly tied to the disposition of this case. The Plaintiff argues whether or not the Plaintiff is “limited” to certain coverage amounts under the applicable statute is not merely a question, but the application of the statute if the Court so grants would clarify the issues in this case.
Under the facts and circumstances of this case, this Court believes that the Declaratory relief sought by the Plaintiff in Court II of its action is not appropriate. Count I as filed states an appropriate claim which is tied to factual determinations based on reasonable treatment as well as cost.
IT IS THEREFORE ORDERED AND ADJUDGED that the Defendant’s Motion is GRANTED.
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