14 Fla. L. Weekly Supp. 218a

Insurance — Personal injury protection — Declaratory judgment — Jurisdiction — County court — Where amount in controversy did not exceed $15,000, county court had jurisdiction to hear complaint seeking only declaratory relief — Coverage — Medical expenses — Reduction — Preferred provider — No error in entry of declaratory judgment finding that insurer is not entitled to discounted PPO rates and shall not be allowed to take PPO reductions on medical bills submitted by insured or her treating physicians where insured was reasonably in doubt regarding payment of bills and PIP policy because insurer sent documents to insured stating that bills would not be paid pursuant to no-fault law but instead would be paid pursuant to PPO agreement with Beech Street, insured’s policy with insurer does not contain PPO provision, insured only became aware of fact that insurer did not actually reduce bills during discovery after commencing litigation, insurer did not provide insured with PIP log showing bills had not been reduced until after she commenced litigation, and it remained unclear whether insurer would attempt to reduce future bills pursuant to Beech Street agreement

PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant/Defendant, v. ELIZABETH ORTIZ, individually, Appellee/Plaintiff. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 04-59. L.C. Case No. CCO-00-15396. September 25, 2006. An appeal from a decision of the County Court, Orange County, C. Jeffery Arnold, Judge. Counsel: Michael C. Clarke and Betsy E. Gallagher, Kubicki Draper, Tampa, for Appellant. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Appellee.

(Before RODRIGUEZ, HAUSER, and T. SMITH, JJ.)

FINAL ORDER AND OPINION AFFIRMING TRIAL COURT

(PER CURIAM.) Progressive Express Insurance Company (Progressive) timely appeals the trial court’s partial summary judgment entered on October 14, 2003 and its final judgment entered on October 12, 2004, in favor of the defendant, Elizabeth Ortiz (Ortiz). This Court has jurisdiction. See Fla. R. App. P. 9.030(c)(1)(A). The facts contained in the record are as follows:

This case began on December 29, 2000, when Ortiz filed suit against Progressive alleging a breach of contract for failure to pay Personal Injury Protection (PIP) benefits pursuant to section 627.736, Florida Statutes, for services provided by Access Healthcare, Inc. (Access). Thereafter, Ortiz moved to amend her complaint. She filed her first amended complaint on February 14, 2001.¹ Count one stated that Progressive denied chiropractic care and breached the contract of insurance because it denied, withheld or reduced coverage by failing to pay $120.00 of a $500.00 bill for medical services rendered on November 20, 2000. The second count requested declaratory relief.

Progressive filed a motion to dismiss count two of Ortiz’s amended complaint on April 9, 2001. Progressive argued that the amended complaint failed to state a claim for declaratory relief. The trial court denied that motion. On July 2, 2001, Progressive filed a motion for summary judgment directed to the first amended complaint. That motion was denied by the trial court on October 14, 2003.

On April 30, 2003, Ortiz moved to amend her complaint by dropping her breach of contract claim and seeking only declaratory relief.² In the second amended complaint, Ortiz alleged that Progressive failed to comply with section 627.736(10), Florida Statutes, and that she was in doubt regarding her rights of recovery under her policy and needed immediate judicial determination of those rights. Ortiz requested that the trial court make the following declarations: (1) that the court allow full and liberal discovery; (2) that there was no duplicative billing for the date of service November 20, 2000; (3) that section 627.736(10) could not be used to reduce payment where Ortiz had not purchased a PPO policy; (4) that Progressive pay all interest on overdue benefits; (5) that the court determine the law that applies to the policy and parties; (6) that the policy provisions that do not comply with Florida law be amended; (7) that any ambiguities in the policy be construed in favor of Ortiz; and (8) that the court do complete justice in the case.

On September 10, 2003, Ortiz filed a motion for partial summary judgment. In that motion, Ortiz asserted that in response to her medical bills, Progressive sent her correspondence informing her that it would not pay for X-rays and that it would not pay her medical bills at the statutory rate of eighty percent (80%). Rather, Progressive informed her that her policy would be subject to PPO/managed care fee schedule administered by a company known as “Beech Street” even though her policy did not contain a PPO/managed care provision. Ortiz contended that the net effect of which was to increase her out of pocket expenses by increasing the amount of medical expenses required to reach the deductible. On October 14, 2003, the trial court granted Ortiz’s motion for partial summary judgment and in the same order it denied Progressive’s motion for summary judgment.

Next, Ortiz filed “Plaintiff’s Motion For Summary Judgment asto PPO/Beech Street Reductions” on November 17, 2003. Prior to filing the motion, Ortiz deposed Mr. Matthew Rowden, a litigation specialist at Progressive. Mr. Rowden testified that while the Explanation of Benefits sent by Progressive indicated that Ortiz’s medical bills would be reduced per the PPO/managed care fee schedule, the PIP payout log showed that no actual deductions were taken. Accordingly, Ortiz argued that there was no genuine issue of material fact that Progressive informed her that it would reduce her medical benefits per the PPO fee schedule in violation of section 627.736, Florida Statutes, and thus, she was entitled to summary judgment.

On December 4, 2003, Ortiz filed “Plaintiff’s Motion For Summary Judgment Regarding Defendant’s Standing Defense.” In this motion, Ortiz contended that Progressive admitted that she had standing to bring suit based on Ortiz’s request for admissions, which were deemed admitted by Progressive by order of the trial court on November 4, 2003. Accordingly, Ortiz maintained that there was no genuine issue of material fact regarding standing.

On January 27, 2004, Progressive filed a motion for partial summary judgment. Progressive argued that the issue of whether there was duplicative billing on November 20, 2000, involved a question of fact that was not appropriate for declaratory relief.

On April 29, 2004, the trial court granted Ortiz’s motions for summary judgment regarding the PPO/Beech Street reductions and the standing defense. In its order, the trial court found that Progressive stipulated that it did not comply with section 627.736(10), Florida Statutes. In addition, the trial court found that Ortiz had standing to bring suit because she had revoked her assignment of benefits, which was accepted by her provider, Access.

On October 12, 2004, the trial court entered its final judgment granting Ortiz’s declaratory action. The final judgment stated in pertinent part that Progressive “is not entitled to discounted PPO/Beech Street rates and shall not be allowed to take PPO/Beech Street reductions on any medical bills submitted by the Plaintiff or her treating physicians.” It also directed that Progressive “provide the Plaintiff with a copy of her PIP payout ledger regarding her motor vehicle accident of August 1, 2000, showing that no PPO/Beech Street reductions were taken on the charges submitted to the Defendant.” This appeal followed.

The standard of review for summary judgment is de novo. Krol v. City of Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001) (citations omitted). Accordingly, this Court must determine if there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id. citing Fla. R. Civ. P. 1.510(c). It is the moving party’s burden to show that no genuine issue of material fact exists. Id. (citation omitted). Therefore, this Court must consider the evidence in the light most favorable to the nonmoving party, and if the slightest doubt exists, summary judgment must be reversed. Id.

Progressive makes several arguments in its initial brief. First, Progressive argues that when Ortiz amended her complaint seeking only declaratory relief, the county court no longer had jurisdiction because the complaint no longer contained a request for monetary relief within the county court’s jurisdictional amount. Second, Progressive asserts that the county court had no jurisdiction because there was no need for declaratory relief based on the present, ascertainable facts. In support of this argument, Progressive maintained that the county court’s declarations were really advisory opinions.

Third, Progressive contends that Ortiz did not have a valid claim for declaratory relief where it had already been established that she had not yet met her deductible; no PPO reductions had been taken; and a copy of the PIP payout log had been provided to her. Thus, Progressive asserted that Ortiz could not have been in “doubt” about her policy rights because the facts show that each matter was resolved prior to the final judgment. Next, Progressive maintains that the trial court should have granted its motion to dismiss Ortiz’s amended complaint for declaratory relief where she did not allege a valid claim for such relief. Lastly, Progressive asserts that if the trial court is reversed, then Ortiz is not entitled to attorney’s fees.

On the other hand, Ortiz asserts that the county court did have jurisdiction because the case involved a $10,000.00 PIP insurance policy, which is within the jurisdictional limits of the county court. Next, Ortiz argues that summary judgment was proper because at the time that she filed suit she was in doubt regarding her rights and obligations concerning her PIP insurance policy. Ortiz contends that this doubt was created when Progressive sent her correspondence indicating that her medical bills would not be paid pursuant to the no-fault law. Rather, Progressive informed her that her bills would be paid pursuant to a PPO arrangement with a company known as Beech Street.

Ortiz also contends that she suffered damage as a result of Progressive’s conduct because if her bills were being reduced, then it would take her longer to meet her deductible. In addition, she contends that Progressive’s conduct damaged the physician-patient relationship. Moreover, Ortiz contends that although Mr. Rowden stated in his deposition that her medical bills had not been reduced, Progressive never stated that it would not take the reductions in the future. Lastly, Ortiz maintains that Progressive’s actions after suit was filed constituted a confession of judgment and thus, she is entitled to attorney’s fees.

The legislature has enacted statutes providing for the equity jurisdiction in the circuit and county courts. Section 34.01, Florida Statutes, provides that county court judges “may hear all matters in equity in any case within the jurisdictional amount of the county court, except as otherwise restricted by the State Constitution or the laws of Florida.” However, section 26.012(2)(c), Florida Statutes, states that circuit courts shall have original jurisdiction “[i]n all cases in equity . . . .” Lastly, section 86.011, Florida Statutes, provides that “[t]he circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could have been claimed.”

In Alexdex Corporation v. Nachon Enterprises, Inc., 641 So. 2d 858 (Fla. 1994), the supreme court examined the apparent inconsistency between sections 34.01 and 26.012(2)(c), Florida Statutes. After examining the State Constitution and the legislative history of the statutes, the court determined that the legislature intended to provide concurrent equity jurisdiction in circuit and county court with the exception that equity cases filed in county court meet the county court’s jurisdictional amount. Alexdex, 641 So. 2d at 861-62.

MRI Services, Inc. v. State Farm Mutual Automobile Insurance Co., 807 So. 2d 783 (Fla. 2d DCA 2002) also addressed the equity jurisdiction of the county court. While this case involved a discovery dispute, the plaintiff argued on appeal that the county court did not have jurisdiction to hear the matter because it was an equitable proceeding with no dollar amount in controversy. MRI Services, 807 So. 2d at 786. The plaintiff asserted that jurisdiction rested with the circuit court. Id. at 786. The second district considered that the legislature amended section 34.01 in 1990 by giving county courts jurisdiction to hear matters in equity within its jurisdictional limit. Id. Because the amount in controversy did not exceed $15,000.00, the second district determined that the county court had jurisdiction over the matter and cited Alexdex in support of its determination. Id. The court further stated that “[a]side from matters presented in alternate resolution formats, the vast majority of monetary PIP claims will be heard in county court. The legislature may wish to review and further define the scope of equitable jurisdiction in the county courts of this state.” Id.

Here, the amount in controversy did not exceed $15,000.00. Therefore, pursuant to MRI Services, the county court had jurisdiction to hear this matter. Accordingly, Progressive’s argument regarding jurisdiction is without merit.

Declaratory judgments are used to grant parties relief regarding some doubt or uncertainty concerning the existence or nonexistence of some right, status, power, or privilege. Prudential Prop. & Cas. Co. v. Castellano, 571 So. 2d 598 (Fla. 2d DCA 1990). In order to obtain a declaratory judgment, a party must show the following:

that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

May v. Holley, 59 So. 2d 636, 639 (Fla. 1952). “[D]isagreements concerning coverage under insurance policies are proper subjects for a declaratory judgment.” Prudential Prop. & Cas. Co., 571 So. 2d at 591.

Here, it is undisputed that Progressive sent Ortiz documents stating that her medical bills would not be paid pursuant to Florida’s no-fault law, but instead would be paid pursuant to a PPO/managed care agreement with Beech Street. In addition, Ortiz’s policy with Progressive did not contain a PPO provision. While it became apparent that Progressive did not actually reduce Ortiz’s medical bills, Ortiz only became aware of this fact during the discovery process after commencing litigation. While Progressive claims that Ortiz had a copy of the PIP payout log showing that her medical bills had not been reduced, this log was not provided to Ortiz until after she commenced litigation.³ In addition, it remained unclear whether Progressive would attempt to reduce future medical bills pursuant to the PPO agreement with Beech Street as opposed to Florida’s no-fault law. Accordingly, based on the present, ascertainable facts, Ortiz was reasonably in doubt regarding the payment of her medical bills and her PIP policy with Progressive; therefore, the county court had jurisdiction to issue the declaratory judgment.

Progressive’s remaining arguments are repetitive. Specifically, Progressive argues that the uncontested facts show that there was no cognizable claim for declaratory relief and that Ortiz did not allege a valid claim for declaratory relief. As discussed above, the facts show that Ortiz was in doubt regarding her rights under her PIP policy and thus, she alleged a valid claim for declaratory relief. As a result, Progressive’s remaining arguments are without merit.

Both parties timely filed motions seeking appellate attorney’s fees and costs. Ortiz seeks appellate attorney’s fees and costs pursuant to sections 627.736(8) and 627.428, Florida Statutes. Pursuant to Florida Rule of Appellate Procedure 9.400, Ortiz should be awarded her appellate attorney’s fees with the assessment of those fees being remanded to the trial court. Additionally, Ortiz is entitled to have costs taxed in her favor by filing a proper motion with the trial court within thirty (30) days after issuance of this Court’s mandate.

Accordingly, it is hereby ORDERED AND ADJUDGED that the trial court’s final judgment is AFFIRMED. Ortiz’s motion for appellate attorney’s fees and costs is GRANTED. Progressive’s motion for appellate attorney’s fees and costs is DENIED.

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¹The trial court granted her motion to amend her complaint on April 2, 2001. (R. at 23.)

²The trial court granted Ortiz’s second motion to amend her complaint on May 21, 2003. (R. at 159.)

³Progressive also asserted that the trial court’s order requiring production of the PIP payout log was unnecessary and not supported by the law and provided New Hampshire Indem. Ins. Co. v. Rural Metro Ambulance, 12 Fla. L. Weekly Supp. 941a (Fla. 18th Cir. Ct. July 18, 2005) as supplemental authority for this assertion. However, upon consideration of a motion for rehearing, the court withdrew its earlier opinion and affirmed the ruling of the trial court. See New Hampshire Indem. Ins. Co. v. Rural Metro Ambulance, 13 Fla. L. Weekly Supp. 573a (Fla. 18th Cir. Ct. Nov. 15, 2005). Accordingly, this argument is without merit.