16 Fla. L. Weekly Supp. 946a
<Online Reference: FLWSUPP 1610 JEAN NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 352a
Insurance — Personal injury protection — Coverage — Declaratory judgment — Complaint seeking determination that plaintiff is entitled to insurance coverage is dismissed where plaintiff failed to satisfy condition precedent of submission to examination under oath, and bona fide dispute does not yet exist since coverage has not yet been denied
MICHELINE JEAN, Plaintiff, v. PEACHTREE CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 08-CA-0034106-O. August 6, 2009. Jose Rodriguez, Judge. Counsel: Tammy B. Denbo, Masten, Lyerly, Peterson & Denbo, LLC, Orlando. Coretta Anthony-Smith.
ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR DECLARATORY JUDGMENT
Defendant’s Motion to Dismiss Plaintiff’s Complaint for Declaratory Judgment was heard by this Court on June 15, 2009. The facts are as follows:
FACTS
On December 19, 2008, Plaintiff filed a Complaint for Declaratory Relief seeking a determination by this Court that Plaintiff was entitled to insurance coverage under a policy of insurance issued by Peachtree Casualty Insurance Company (hereinafter “PEACHTREE”). Plaintiff attached a copy of the subject insurance policy to the Complaint. Plaintiff also attached a copy of a December 3, 2008 correspondence from PEACHTREE wherein PEACHTREE stated that PEACHTREE contended that Plaintiff was not an insured within the definitions, terms, conditions, limitations and exclusions under the policy. This correspondence stated that PEACHTREE was still investigating the claim.
In Plaintiff’s Complaint, Plaintiff stated that PEACHTREE requested Plaintiff to complete an Examination Under Oath. In Plaintiff’s Complaint, Plaintiff maintained that she was an insured under the insurance policy issued by PEACHTREE and was entitled to coverage. Plaintiff alleged there was a bona fide dispute as to whether Plaintiff was entitled to coverage and as to her rights and obligations under her policy. Plaintiff asserted that she had performed all conditions precedent to be an insured under the policy of insurance and that Plaintiff was entitled to coverage.
MOTION TO DISMISS
On February 14, 2009, PEACHTREE’s counsel served Plaintiff with Defendant’s Motion to Dismiss Plaintiff’s Complaint for Declaratory Judgment due to Plaintiff’s failure to state a cause of action upon which relief can be granted since Plaintiff did not meet a condition precedent. PEACHTREE also contended that Plaintiff failed to demonstrate that a bona fide dispute existed such that there was an actual, present need for this action. PEACHTREE’s Motion to Dismiss cited to the portion of Plaintiff’s Complaint wherein Plaintiff acknowledged that Plaintiff was requested to submit to obligations under the policy; specifically, an Examination Under Oath.
PEACHTREE’s motion directed the Court to relevant portions of the insurance policy that was attached to Plaintiff’s Complaint and these portions of the policy define an “insured.” Under PEACHTREE’s insurance policy, a person is not considered an “insured” until it is determined that the person occupied a motor vehicle that was involved in the subject accident. PEACHTREE’s motion stated that Plaintiff’s Complaint failed to allege facts sufficient to show Plaintiff could be classified as an “insured” under the policy.
PEACHTREE’s insurance policy states the “Duties After an Accident or Loss” to include cooperation in the investigation and completing an Examination Under Oath. This section of the policy states that PEACHTREE has no duty to provide coverage under the policy unless there has been full compliance with the listed duties and that “[n]o legal action may be brought against us until there has been full compliance with all terms of this policy.”
PEACHTREE’s motion to dismiss directed the Court to PEACHTREE’s December 3, 2008 correspondence wherein PEACHTREE stated the claim was still under investigation and stated that this showed that a bona fide dispute did not yet exist since coverage had not yet been denied.
RULING
THIS COURT, having been fully advised in the premises, finds that Plaintiff failed to meet a condition precedent to filing this lawsuit and that a bona fide dispute did not yet exist when Plaintiff’s Complaint was filed as there was not an actual, present need for this action. This Court notes that although the language utilized in PEACHTREE’s correspondence was somewhat confusing, this lawsuit may have been avoided through a phone call between the parties where this concern was discussed and explained.
This Court hereby grants PEACHTREE’s Motion to Dismiss Plaintiff’s Complaint for Declaratory Judgment and as a result, this case is hereby dismissed. Although this Court was inclined to issue this dismissal without prejudice, at the request of counsel for Plaintiff, the dismissal is with prejudice.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Plaintiff’s Complaint for Declaratory Judgment is hereby GRANTED and Plaintiff’s Complaint is dismissed WITH PREJUDICE.
