15 Fla. L. Weekly Supp. 164a
Insurance — Personal injury protection — Declaratory judgment — Complaint alleging claims for failure to provide explanation of benefits, policy, declarations page and PIP log to medical provider states viable cause of action for declaratory relief — Motion to dismiss denied
METRO INJURY & REHAB CENTER, INC., Florida Corporation (assignee of Perez, Eugenio), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-19255 CC 23 (05). November 6, 2007. Don S. Cohn, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Gregory E. Gudin, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNTS II, III AND IV
THIS CAUSE, came before the court for hearing on October 24, 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. Count II claim 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); Count IV 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 contends that Plaintiff cannot state a claim for declaratory relief regarding its rights to an EOB because there is no doubt as to Plaintiff’s rights. Defendant further 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) [32 Fla. L. Weekly D1396a].
Conclusions of Law:Plaintiff is seeking judicial construction of statutes governing insurance contracts. As Defendant continues to contest Plaintiff’s entitlement to this information, an actual controversy over construction of a statute exists. The dispute is not merely hypothetical or the giving of legal advice, but rather, one of the parties is seeking to exercise purported rights under a statute which is being disputed by the other party. Addressing each count in turn:
COUNT II — EOB: This Court agrees with the county courts in South Florida which have specifically authorized declaratory actions to resolve disputes over the right to an EOB. See e.g., R.J. Trapana, M.D., P.A. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 732c, (Broward County, Judge Sharon Zeller, 2006); Coastal Medical Orthopedic Services v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1229a (Broward County, Judge Julio E. Gonzalez, Jr., 2006); Primary Care Medical Group v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. (Broward County, Judge Lisa Trachman, 2005).
COUNT III — PIP LOG: Defendant asserts that Plaintiff may not maintain an action for declaratory relief to determine its right to a PIP Log in light of Third District Court of Appeals’ 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]. However, the Third District Court of Appeal’s opinion is narrowly tailored to restrict the insured’s (or his assignee’s) right to this information only under F.S. 627.736(6)(d). It does not address Plaintiff’s right to obtain this information through another section of F.S. 627.736. Here, the Plaintiff is seeking to construe a completely different statute: F.S. § 627.736(4)(b) — governing insured’s right to information, and not, F.S. § 627.736(6)(d) — governing insurer’s right to information. This issue was not addressed by Humanitary Health Care, Inc. and is proper to consider under a declaratory relief claim.
COUNT IV — POLICY/DECLARATION PAGE: This court 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. 349c (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).
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.
