15 Fla. L. Weekly Supp. 882a
Insurance — Personal injury protection — Declaratory judgment — Dismissal — Appeals — Standard of review for dismissal of declaratory action based on failure to state cause of action is de novo — Complaint for declaratory relief was correctly dismissed for failure to state cause of action where medical provider claims in complaint that it requires policy and PIP log to determine its status as claimant and but fails to specify right about which it is unsure
TRAN CHIROPRACTIC & WELLNESS CENTER, INC., (a/a/o Linda Zayas), Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 07-9372, Division X. L.C. Case No. 06-33619-CC. July 3, 2008. On review of a final Judgment of the County Court, Hillsborough County, The Hon. Cheryl Thomas, County Court Judge, presiding. Counsel: Philip A. Friedman, Bonifield, Friedman & Liefer, Tampa, for Appellant. David Kampf, Ramey & Kampf, P.A., Tampa, for Appellee.
(SAM D. PENDINO, J.) Appellant Tran Chiropractic (Tran) asks this court to review the judgment dismissing its complaint for declaratory action. Because the complaint was vague as to the nature of the rights it sought to establish under the insurance policy, we conclude that dismissal for failure to state a cause of action was proper.
The facts, stated briefly, are that Tran rendered medical services to State Farm’s insured Linda Zayas because of injuries she received in an automobile accident. When a dispute arose with State Farm as to the payment of claims, Tran, as her assignee, sued State Farm. The two-count complaint sought declaratory relief and unpaid benefits. The provider complied with the statutory requirement to send a pre-suit demand letter for the unpaid benefits, which requested, in the event payment were denied, the provider to explain the basis for denial and also to provide a statement of the benefits remaining by way of a payout log. Within 30 days, the provider filed suit against the insurer.
The provider took a voluntary dismissal of the claim for unpaid benefits under the threat of section 57.1051 sanctions, based upon the insurer’s assertion that benefits had been exhausted. Thus, the only remaining count was for declaratory relief. The trial court dismissed the count for declaratory relief, stating that “[b]ased upon statements by counsel for [State Farm] that there was not an issue with production, and there is no dispute that [Tran] is otherwise entitled to these documents and the insurer is entitled to 30 days to produce the documents, the Court grants [State Farm’s] motion [to dismiss] as there is no justiciable issue as to Count I-Declaratory Relief.”
The parties disagree as to the standard of review. The provider contends that the standard of review on a motion to dismiss is de novo. Morin v. Fla. Power & Light Co., 963 So. 2d 258 (Fla. 3d DCA 2007) (In reviewing an order granting a motion to dismiss for failure to state a cause of action, the standard of review is de novo). The insurer claims that the standard of review on a dismissal of a declaratory action is abuse of discretion. Basik Exports & Imports, Inc. v. Preferred National Ins. Co., 911 So. 2d 291, 292 (Fla. 4th DCA 2005). State Farm’s reliance upon Basik is misplaced. In Basik, the dismissal was based upon the court’s conclusion that the declaratory action had become moot and the dismissal was, therefore, based on the merits. It was not as in the instant case, based upon a failure to state a cause of action. Thus, in this case, the standard of review is de novo.
The purpose of a motion to dismiss is to determine whether the complaint states a cause of action upon which relief may be granted. Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513( Fla. 4th DCA 1987). The trial court must look only to the four corners of the complaint, and the allegations contained therein should be taken as true without regard to the pleader’s ability to prove the same. Id. Although the trial court’s order suggests that it erroneously combined elements of summary judgment (for example, its reference to the lack of justiciable issue) with a motion to dismiss, the result was correct.
A claim for declaratory relief pursuant to section 86.021, Florida Statutes (1995) must indicate a true, valid and actual cause of action exists. Section 86.021 provides:
“Any person claiming to be interested or who may be in doubt of about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable legal relations are affected by a statute. . . may have determined any question or construction or validity arising under such statute, regulation, municipal order, contract, deed, will, franchise, or other article, memorandum or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations there under.” §86.021, Fla. Stat. (1995).
In its complaint, the provider claims it requires the policy and PIP (payout) log to determine its ‘status as a claimant.’ The complaint fails to specify about what rights it is unclear. Rather, in addition to the need to determine its status as a claimant, the complaint states in its paragraph 16: “A controversy presently exists between the Plaintiff and Defendant surrounding the question of whether or not the Defendant will pay the Plaintiff for medically necessary, reasonable, and related medical treatment as a result of the motor vehicle accident.” This, along with the remaining statements in the complaint, does little to enlighten one as to the relief Tran seeks except that it seems to require the production of documents to determine its rights. The lack of clarity supports the trial court’s dismissal of the complaint for failure to state a cause of action, regardless of the stated reason in the order, pursuant to the tipsy coachman doctrine. Home Depot U.S.A. Co. v. Taylor, 676 So.2d 479, 480 (Fla. 5th DCA 1996). If the need for the documents is to assist the provider in determining whether benefits were exhausted, as it claims in its brief, Tran’s complaint does not reflect it. We note that the documents Tran seeks pursuant to the declaratory relief count would have been discoverable in the claim for damages without the need to resort to filing a declaratory action. Despite the parties’ arguments regarding State Farm’s duty to provide the documents on a pre-suit basis, because the trial court did not rule on this issue, we cannot do so.
Tran took a voluntary dismissal of the second count of its complaint on the ground that benefits were exhausted; therefore, it is unlikely that it can amend the complaint to state a cause of action. Nonetheless, it should be afforded an opportunity to do so if it can. It is therefore
ORDERED that the decision of the trial court is AFFIRMED. This cause is REMANDED to afford Tran the opportunity to amend its complaint. It is further ORDERED that the competing motions for appellate attorney’s fees are DENIED in the absence of a prevailing party on appeal. This order on appellate attorney’s fees is without prejudice to the parties’ rights to attorney’s fees in the trial court. (STODDARD and GOMEZ, JJ., Concur.)
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1Section 57.105, Florida Statutes.
