15 Fla. L. Weekly Supp. 176a
Insurance — Personal injury protection — Declaratory judgment — Despite case resolving medical provider’s entitlement to PIP log under different provision of PIP statute, question of whether provider is entitled to log under section 627.736(4)(b) remains open and is proper subject for declaratory relief — Provider may maintain declaratory action for copy of policy and declarations page — Provider is not required to plead damages as element of declaratory relief
HANDS ON HEALTHCARE, LLC F/K/A BARR CHIROPRACTIC, Florida Corporation (assignee of McPherson, Clive), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 07-20177 CC 23 (05). November 28, 2007. Don S. Cohn, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Karen Trezger, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNTS II AND III
THIS CAUSE, came before the court for hearing on November 28, 2007, and the court, having reviewed the Motion, legal authorities and having entertained argument of counsel, finds as follows:
Factual Background:This is a multi-count P.I.P. case. Count II 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); Count III seeks declaratory relief 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. Defendant alleges in its Motion to Dismiss that the above do not constitute viable causes of action. Defendant further alleges that Plaintiff fails to plead that it was damaged in either cause of action for declaratory relief. As to Plaintiff’s claim for Declaratory Relief regarding the right to a P.I.P. log, Defendant asserts 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). Addressing each count in turn, the court finds as follows:
Count II (Claim for PIP Log Pursuant to Florida Statute s. 627.736(4)(b))
Defendant seeks dismissal of Plaintiff’s claim for declaratory relief regarding Plaintiff’s right to a PIP log under Florida Statute s. 627.736(4)(b), asserting that the case of Southern Group Indemnity Inc. v. Humanitary Health Care, Inc. has resolved any doubt that the Plaintiff might have as to its right to a PIP log. Defendant seems to focus on the question — “What’s the doubt?” However, the Third District’s decision in Humanitary Health Care was narrowly tailored and addressed only the question of whether a claimant is entitled to a PIP log under Florida Statute s. 627.736(6)(d) (commonly referred to as “insurer’s right to information”), and did not address entitlement to relief under any other statute — namely Florida Statute s. 627.736(4)(b). The question of whether a claimant is entitled to a PIP log under Florida Statute s. 627.736(4)(b) remains open and is a proper subject for declaratory relief.
Count III (Regarding right to Policy and Declarations Page/Statement of Coverages)
This court has ruled on this issue before in similar cases involving the same Defendant, see Dade Injury Rehabilitation Center v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 667 (2007), and maintains its prior ruling. See also, Dade Injury Rehabilitation Center v. United Auto. Ins. Co., Case No. 07-16372 CC 23 (04) (September 19, 2007). As such, this court denies the Defendant’s Motion to Dismiss as to Count III (declaratory relief regarding right to a copy of the policy/statement of coverages under Florida Statute s. 627.4137). The court finds that the complaint states a proper cause of action under declaratory relief and agrees with the reasoning of the overwhelming majority of county and circuit courts that have considered the issue and finds that an assignee medical provider may maintain an action for a copy of the insurance policy and policy declarations page. See, e.g., Integra Diagnostics v. Reliance Nat’l Ind., 8 Fla. L. Weekly Supp. 394c (County Court, Broward 2001); Florida Orthopedic Center, P.A. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1234 (County Court, Broward 2006); Scott M. Jablon, D.C. v. United Auto. Ins. Co., 13 Fla L. Weekly Supp. 643c (County Court, Broward 2006); American Vehicle Ins. Co. v. Florida Emergency Physicians Kang & Assoc., P.A., 13 Fla. L. Weekly Supp. 973 (18th Circuit Appellate 2006); ROM Diagnostics v. Security Nat’l Ins. Co., 9 Fla. L. Weekly Supp. 323b (County Court, Orange 2002); Rural Metro Ambulance v. Liberty Mut. Ins. Co. 11 Fla. L. Weekly Supp. 69a (County Court, Broward 2003); Palm Beach Regional MRI v. Southern Group Ind. Co., 11 Fla. L. Weekly Supp. 742a (County Court, Palm Beach 2004); Florida Emergency Physicians Kang & Assoc. v. United Auto. Ins. Co. 12 Fla. L. Weekly Supp. 805b (County Court, Seminole 2005); Florida Emergency Physicians Kang & Assoc. v. American Vehicle Ins. Co., 12 Fla. L. Weekly Supp. 774c (County Court, Orange 2005); Florida Emergency Physicians Kang & Assoc. v. American Vehicle Ins. Co., 12 Fla. L. Weekly Supp. 478b (County Court, Orange 2005). The policy is sound and discourages needless litigation. Moreover, an insurer cannot rightly demand strict compliance with policy conditions on one hand and then refuse to furnish the policy (so that the claimant can determine his/her rights and obligations) on the other.
As to Defendant’s argument that Plaintiff is required to plead damages as an element of declaratory relief, Defendant is simply incorrect. See Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400, 404 (Fla. 1996) (finding the necessary elements for “[a] party seeking declaratory relief [are]: 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; and 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 interests are all before the court by proper process or class representation and that the relief sought is not merely giving of legal advice by the courts or the answer to questions propounded from curiosity.”).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED. Defendant shall respond to the complaint within 20 days.
