19 Fla. L. Weekly Supp. 777a
Online Reference: FLWSUPP 1910MESAInsurance — Personal injury protection — Declaratory judgment — Demand letter — Trial court erred in concluding that medical provider cured failure to provide presuit demand letter by providing demand letter after complaint for declaratory relief was filed — Issue of whether medical expenses were reasonable, related and necessary should not be subject of declaratory action — Remand with directions to vacate orders on motions for summary judgment and order awarding final declaratory judgment in favor of provider and dismiss action based on failure to serve presuit demand letter
UNITED AUTOMOBILE INSURANCE COMPANY, (A Florida Corporation) Appellant, v. DYNAMIC MEDICAL SERVICES, INC. A/A/O DORALIS MESA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-239 AP. L.C. Case No. 06-1201 CC 25. July 13, 2012. On appeal from the County Court for Miami-Dade County. Andrew Hague, Judge. Counsel: Michael J. Neimand, Office of General Counsel for United Automobile Insurance Company, Trial Division, for Appellant. Christian Carrazana, Panter, Panter & Sampedro, P.A., for Appellee.[Lower Court Opinion at 15 Fla. L. Weekly Supp. 831a]
(Before BAILEY, DRESNICK, and MARIN, J.J.)
(DRESNICK, Judge.) Appellant United Automobile Insurance Company (United) brings this appeal from a Summary Final Judgment entered in favor of the Appellant, Dynamic Medical Services, Inc. (“Dynamic”).
The case presented before the trial court on cross motions for summary judgment. The Appellee, Dynamic, moved for summary judgment on declaratory judgment determining that there was no genuine issue of fact and that the care was reasonable, related and medically necessary. Appellant United moved for summary judgment due to the plaintiff’s failure to follow Florida Stat. § 627.736(11)(a) requiring pre-suit notice. The trial judge rejected United’s argument and granted Dynamic’s Motion for Summary Judgment. Appellant United appeals the entry of summary judgment in favor of Dynamic and the denial of United’s dispositive summary judgment.
The standard of review for an order granting summary judgment is de novo. Volusia County et. al. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. When applying the de novo standard of review to an order granting summary judgment, the reviewing court must determine: 1) whether a genuine issue of material fact exists; and, 2) whether the trial court applied the correct law. Volusia County, 760 So. 2d at 130; Flagship Resort Development Corp. v. Intern, Inc., 28 So. 3d 915, 920 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D252a]. Prong two of the summary judgment standard of review — whether the trial court applied the correct law — is at issue here. Volusia County, 760 So. 2d at 130; Flagship Resort Development Corp., 28 So. 3d at 920.
Both parties acknowledge that Appellee Dynamic Medical did not serve a pre-suit demand letter on Appellant United Auto before filing its complaint for declaratory relief on January 23, 2006. Both parties also acknowledge that Appellee Dynamic Medical did send United Auto a demand letter after filing suit. Dynamic argued to the trial court that Appellee’s act of providing Appellant with a demand letter after filing its complaint for declaratory relief cured the pre-suit demand letter deficiency of § 627.736(11)(a) of the Florida Statutes.
However, the Third District Court of Appeal stated in Progressive Express Insurance Co. v. Menendez that § 627.736(11)(a) of the Florida Statutes requires a pre-suit demand letter be sent as a condition precedent to filing a lawsuit for overdue PIP benefit claims. 979 So. 2d 324, 332 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a], quashed on other grounds, Menendez v. Progressive Express Insurance Co., Inc., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S222b]. The Third District further determined that a demand letter sent after the lawsuit had been initiated cannot cure the pre-suit demand letter condition precedent deficiency. Menendez, 979 So. 2d at 334. Therefore, we find that the trial court failed to apply the correct law when it held that Dynamic cured its failure to comply with the statutory condition precedent of § 627.736(11)(a) by providing United with a demand letter after the complaint for declaratory relief was filed. The Third District Court stated in Menendez that “[W]hen a plaintiff fails to comply with the statutory condition precedent of § 627.736(11)(a) the proper remedy is dismissal of the law suit and not abatement.” 979 So. 2d at 333. The failure to deliver the pre-suit notice requires dismissal of the case.
The complexity of this matter is further exaggerated by Dynamic’s pursuit of the matter as a declaratory judgment action. The complaint for declaratory relief sought to have the trial court determine whether the treatment provided for Ms. Mesa was reasonable, related, and necessary, and whether payment for treatment rendered would be appropriate; all of which are requirements under the contract of insurance. Claims submitted to obtain medical expenses incurred requires a factual determination with regard to whether the medical expenses for treatment were reasonable, related and necessary, and thus, entitled to payment. Cruz v. Union General Ins., 586 So. 2d 91, 91 (Fla. 3d DCA 1991); see § 627.736(7), Fla. Stat. (2006). These types of factual questions regarding entitlement to payment for services rendered should not be the subject matter of declaratory actions. Cruz, 586 So. 2d at 91. An action for declaratory relief cannot be maintained when its goal is merely to seek payment for medical services rendered. Id. Instead, an action for breach of contract is the better vehicle to use when presenting the issue of payment to the court for resolution. Id.
The denial of a motion to dismiss is not generally a final order from which an appeal can be taken. However, after the denial of the motion to dismiss, the trial court granted Appellee’s motion for summary judgment as it related to the declaratory action count. We find that the lower court erred when it denied Appellant United Auto’s motion to dismiss the Appellee’s complaint for declaratory relief; and that this order became appealable once the final declaratory judgment was entered on April 20, 2009. See e.g., Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 150 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D580a] (“an appeal from a final order calls up for review all necessary interlocutory steps leading to that final order, whether they were separately appealable or not”) Therefore, upon remand due to reversal of the summary judgment, the trial court should grant United’s motion to dismiss the declaratory judgment count.
Consequently, this case is Remanded to the trial court with directions that it vacate its February 10, 2009 order granting and denying summary judgment, vacate the April 20, 2009 order awarding final declaratory judgment in favor of Appellee Dynamic and dismiss the action based on the Appellee’s failure to timely file a pre-suit demand letter. (BAILEY and MARIN, J.J. concur.)
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