15 Fla. L. Weekly Supp. 1116a
Insurance — Personal injury protection — Motion to dismiss — Allegations that go to merits of action are improper for motion to dismiss
LOGAN FAMILY CHIROPRACTIC, P.A., a Florida Corporation (assignee of Dobrzeniecki, Mieczyslaw), Plaintiff, v. ESURANCE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 08-CC-002138-NC. September 2, 2008. Emanuel LoGalbo, Jr., Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Anthony J. Parrino, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE, came before the court for hearing on August 22, 2008, 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 II and III seek declaratory relief and breach of contract for Defendant’s 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; Plaintiff withdrew Counts I and IV at the hearing. Defendant alleges in its Motion to Dismiss that F.S. s. 627.4137 pertains to liability carriers only and that it is not applicable in an action for P.I.P. benefits, and further, that neither F.S. s. 627.4137 or F.S. s. 627.736(4)(b), create a responsibility on the part of an insurer to provide a copy of a policy and declarations page to a third party that is not a claimant in tort. Plaintiff replied that such allegations go to the merits of the action and are thus an improper subject for a motion to dismiss.
Conclusions of Law:
Plaintiff is correct in that Defendant’s allegations raised in its motion to dismiss go to the merits of the action and are thus improper for a motion to dismiss. Based on the four corners of the complaint, Plaintiff has sufficiently plead a cause of action for declaratory relief and breach of contract. 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”.).
Counts I and IV were withdrawn by Plaintiff and therefore were not addressed by this Court as they are moot.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is DENIED. Defendant shall respond to the complaint within 20 days.
