15 Fla. L. Weekly Supp. 483a
Insurance — Personal injury protection — Declaratory judgment — Motion to dismiss action seeking determination of whether insurer had right to unilaterally recode medical provider’s charges is denied where determination will resolve actual dispute at issue in case — Fact that provider can obtain complete relief in another pending civil action does not preclude declaratory judgment
JKR REHAB & WELLNESS A/A/O OCARIS FERNANDEZ, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-29342-CC-23. February 27, 2008. Caryn Canner Schwartz, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. George Thomas Green, Hollywood, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNT I OF PLAINTIFF’S COMPLAINT
THIS MATTER came before the Court on Defendant’s Motion to Dismiss Count I of Plaintiff’s Complaint. The Court hereby DENIES Defendant’s said Motion to Dismiss for the following reasons:
FACTUAL BACKGROUND
1. This is a multi-count P.I.P. action.
2. Count I seeks declaratory relief regarding whether the Defendant is entitled to unilaterally re-code 97014 to G0283 under the contract of insurance and/or F.S. Section 627.736(5)(b)1.e. F.S. Section 627.736(5)(b)1.e. provides that the insurer is only permitted to re-code when the claim was “improperly or incorrectly upcoded or unbundled”.
3. Defendant has moved to dismiss Count I, alleging the Plaintiff fails to meet the six requisites for declaratory relief.
ANALYSIS
4. Actions for declaratory relief are to be liberally allowed pursuant to Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004), and have been authorized in numerous P.I.P. cases in Florida to determine Plaintiff’s rights under specific provisions of F.S. 627.736.
5. In the case at bar, Plaintiff alleges that Defendant has improperly recoded Plaintiff’s charges since Plaintiff’s charges were not “improperly or incorrectly upcoded or unbundled.”
6. Pursuant to F.S. Section 627.736(5)(b)1.e., specific criteria must be met in order for the insurer to re-code Plaintiff’s charges: 1.) the code must be “incorrectly or improperly upcoded or unbundled” and 2.) the insurer must contact the healthcare provider and discuss the reasons for the insurer’s change and the healthcare provider’s reason for the coding, or make a reasonable good faith effort to do so, as documented in the insurer’s file.
7. Plaintiff’s complaint alleges neither criterion was met.
8. In the Higgins case, the Court held that an insured individual could bring a declaratory action “seeking a determination of a factual issue upon which the insurer’s duty to defend depends.” The factual issue is whether Defendant had the right to re-code under F.S. Section 627.736(5)(b)1.e. The Higgins Court also held, “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 applicability of an immunity, power, privilege, or right.” The Court must determine whether Defendant had a “right” to re-code based upon the Court’s application of the law to the facts of this case.
9. The declaration resolves an actual coding dispute at issue in this case and the Court is not merely giving legal advice.
10. The Defendant also alleges that “the declaratory judgment will be denied when the parties can obtain complete relief in another pending civil action.” However, the Florida Rules of Civil Procedure expressly allow multiple and alternative causes of action. See Fla.R.Civ.P. 1.110(g). Additionally, the Declaratory Judgment Statute, Fla.Stat. s.86.111, states “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief.” F.S. 86.011 provides, in pertinent part, “Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.”
11. The Plaintiff has met all criteria required for the filing of a declaratory judgment action under Count I of its Complaint pursuant to the Higgins case and Chapter 86, Florida Statutes.
