15 Fla. L. Weekly Supp. 164b
Insurance — Personal injury protection — Declaratory judgment — Complaint alleging claim for failure to provide PIP log to medical provider states viable cause of action for declaratory relief
DADE INJURY REHABILITATION CENTER, Florida Corporation (assignee of James, Monique), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-18848 CC 23 (05). November 14, 2007. Don S. Cohn, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Stephanie H. Vo, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNT III
THIS CAUSE, came before the court for hearing on November 14, 2007, and the court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background:This is a multi-count P.I.P. case. Counts I and II claim breach of contract and declaratory relief for failure to provide an Explanation of Benefits (commonly known as an “EOB”) pursuant to F.S. 627.736(4)(b); Count III is a claim for declaratory relief for failure to provide a P.I.P. payout log, or “PIP log”, pursuant to F.S. 627.736(4)(b); Counts IV and V seek declaratory relief and breach of contract for failure to provide a copy of the policy of insurance and the policy declarations page pursuant to F.S. 627.736 and/or 627.4137; Count VI is a claim for breach of contract for failure to provide P.I.P. benefits. Defendant contends that Plaintiff cannot state a cause of action for declaratory relief for failure to provide a P.I.P. log in light of the Third District Court of Appeal’s recent decision in Southern Group Indem., Inc. v. Humanitary Health Care, Inc., NO. 3D06-2788 (Fla. 3rd D.C.A., 2007) [32 Fla. L. Weekly D1396a].
Conclusions of Law:Defendant’s argument that the Southern Group case trumps Plaintiff’s right to a P.I.P. log is simply incorrect. While Plaintiff may not obtain the P.I.P. log under F.S. 627.736(6)(d), the Third District Court of Appeal’s opinion is narrowly tailored to restrict the insured’s (or his assignee’s) right to this information under F.S. 627.736(6)(d) ONLY. It does notaddress Plaintiff’s right to obtain this information through section of F.S. 627.736(4)(b).
Moreover, actions for declaratory relief are to be liberally allowed. See Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004). Based on the four corners of the complaint, Plaintiff has stated a viable cause of action for declaratory relief. Barbado v. Green & Murphy P.A., 758 So. 2d 1173 (Fla. 4th DCA 2000) (holding “[a] motion to dismiss tests the legal sufficiency of the complaint” and “[a] court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED. Defendant shall respond to the complaint within 20 days.
