20 Fla. L. Weekly Supp. 810a
Online Reference: FLWSUPP 2008LEIVInsurance — Personal injury protection — Motion for rehearing of order denying motion to amend statement of claim to add counts for declaratory relief and breach of implied covenant of good faith and fair dealing is denied — Allegations that insurer refused to pay PIP benefits despite medical provider’s compliance with PIP statute are foundation for breach of contract action and do not demonstrate bona fide, actual and present need for declaration — Claim for breach of implied covenant of good faith and fair dealing is not permissible in action for PIP benefits
GABLES INSURANCE RECOVERY A/A/O VIVIAN A. MONTEAGUDO LEIVA, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 12-24280-SP-05. June 6, 2013. Shelley J. Kravitz, Judge. Counsel: Aimee A. Gunnells, Gables Insurance Recovery, Coral Gables, for Plaintiff. Patrick J. Gerace, Law Offices of Neil V. Singh, Fort Lauderdale, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORREHEARING/RECONSIDERATION ON PLAINTIFF’SMOTION TO AMEND STATEMENT OF CLAIM
THIS CAUSE having come before the Court on Plaintiff’s Motion for Rehearing/Reconsideration on Plaintiff’s Motion to Amend Statement of Claim with Count II-Request for Declaratory Judgment and Count III-Breach of Implied Covenant of Good Faith and Fair Dealings and the Court having heard argument of counsel, and being otherwise duly advised in the premises finds as follows:
BACKGROUND & ISSUES ON MOTION FOR REHEARING/RECONSIDERATION
1. The issue before this Court is whether Plaintiff is entitled to amend their instant Breach of Contract Complaint.
2. On or about January 10, 2013, Plaintiff filed its Motion to Amend Statement of Claim. The proposed Amended Statement of Claim, which was attached to Plaintiff’s motion as Exhibit “A”, is a three Count Amended Complaint for: Breach of Contract (Count I) and Declaratory Judgment (Count II) and Breach of Implied Covenant of Good Faith and Fair Dealing (Count III) with regard to alleged PIP benefits owed.
3. On March 18, 2013, the Court entered an Order denying Plaintiff’s Motion to Amend Statement of Claim to add Count II for Declaratory Relief and Count III for Breach of Implied Covenant of Good Faith and Fair Dealing.
4. The Plaintiff, GABLES INSURANCE RECOVERY A/A/O VIVIAN A. MONTEAGUDO LEIVA has filed the instant motion pursuant to Florida Rule of Civil Procedure 1.530 et seq.
5. Under this provision of law, a party is not permitted to make a renewed recitation of the arguments it made in its prior pleadings and/or arguments before the Court.
6. In fact, the party moving for such relief should highlight issues of law that have been overlooked and/or misapprehended by the Court.
7. The majority of Plaintiff’s motion raises facts and legal arguments that are a regurgitation of the written arguments and oral presentation made before the Court ruled on March 18, 2013; denying Plaintiff’s Motion to Amend Statement of Claim to add Count II for Declaratory Relief and Count III for Breach of Implied Covenant of Good Faith and Fair Dealing. Such an attempt to seek a “second bite at the apple” after amply presenting its arguments is improper.
8. Florida law is well settled that a motion for reconsideration is a means afforded by rule to present to the court some point which it overlooked or failed to consider by reason whereof its judgment is erroneous. Atlantic Coast Line R. Co. vs. City of Lakeland 115 So.699 (Fla. 1927).
9. It is not a function of a motion for reconsideration to furnish a medium through which counsel may advise the Court that they disagree with its conclusions, to reargue matters already considered, to request the court to change its mind as to a matter which has already received the careful attention of the judge, or advancing new or other points or theories not previously relied on. See Sherwood vs. State, 111 So. 2d 96 (Fla. 3d DCA 1959). [Emphasis supplied].
10. At the hearing held on March 18, 2013, the Court heard extensive argument from Plaintiff’s Counsel on the issues which are the subject of Plaintiff’s Motion for Rehearing/Reconsideration and made a finding that Plaintiff’s Motion to Amend Statement of Claim and proposed Amended Statement of Claim were not sufficiently pled and proposed Count II and Count III were not permissible under Florida law.
11. Plaintiff’s instant motion essentially raises the same arguments previously rejected by this Honorable Court and does not entitle the Plaintiff to a rehearing or reconsideration of the March 18, 2013 Order. The Court carefully considered all of the arguments and absent some error by the Court, a rehearing is not appropriate. Cole vs. Cole; 130 So.2d 126 (Fla. 1st DCA 1961).
12. The Plaintiff’s motion does not set forth any basis to alter or amend the Court’s findings on the record. Rather, Plaintiff’s Motion for Rehearing/Reconsideration is nothing more than an attempt to persuade this Honorable Court to change its mind and render a decision favorable to Plaintiff.
FINDINGS
Count II
The purpose of a declaratory judgment “is to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed.” Fla. Stat. §86.101. In pleading an action for declaratory relief, the pleader must demonstrate that: (1) there is a bona fide, actual, present need for the declaration; (2) the declaration deals with a present or ascertainable controversy; (3) there is a person who has or reasonably may have an actual, present, adverse interest in the subject matter; and (4) the relief sought is not merely the giving of legal advice by the court. May v. Holley, 59 So. 2d 636, 639 (Fla. 1952).
Plaintiff has failed to allege a sufficient basis to demonstrate that there is a bona fide, actual, present need for a declaration by this Court. Instead, Count II addresses what Plaintiff perceives as Progressive’s refusal to pay medical bills that were reasonable, related, and necessary to the subject motor vehicle accident. Plaintiff further alleges in Count II that Plaintiff provided Defendant with timely notice of the claim, submitted the subject medical bills, complied with all conditions precedent, and sent a Florida Statute §627.736(10) pre-suit demand to Progressive. Such perceptions of a refusal to pay by Progressive and assertions of compliance by Plaintiff with Florida’s No-Fault law form the foundation of a breach of contract action for payment of PIP benefits (currently pled in Count I of the Complaint) and not an action for declaratory relief. Accordingly, the proposed Count II of Plaintiff’s Complaint does not demonstrate a bona fide, actual, present need for a declaration by this Court.
Count II further fails to demonstrate a bona fide, actual, present need for a declaration as Plaintiff seeks a ruling from this Court that Plaintiff is entitled to “payment of the claim in toto as asserted in this action” in amount not to exceed $5,000.00 in total medical bills it submitted to Progressive if coverage existed for the subject motor vehicle accident. Plaintiff further seeks, under Count II, that the Defendant breached the insurance contract and an award of attorney’s fees. Such requests by Plaintiff do not demonstrate a bona fide, actual, present need for a declaration by this Court but instead illustrate the underpinnings of an action for breach of contract for damages already pled in Count I of the instant Complaint.
To hold otherwise, would not only allow Plaintiff to circumvent the strict requirements of Florida’s No-Fault law and the specific terms and conditions of the subject insurance policy but would also allow Plaintiff the ability to obtain a judgment finding Progressive liable for medical bills, submitted under the PIP portion of the subject insurance policy, without there being a determination of whether Plaintiff and/or the insured had complied with both Florida’s No-Fault law and the subject policy of insurance such that the at-issue medical bills are properly payable and Plaintiff is entitled to payment of PIP benefits for same.
Additionally, requesting such a determination by this Court amounts to the seeking of an advisory opinion that the at-issue medical bills are payable without allowing for a determination as to whether the medical bills themselves are properly payable under Florida No-Fault law. Moreover, multiple courts in this circuit have found dismissal the appropriate remedy when presented with curiously similar Petitions for Declaratory Relief. See Gulf Coast Injury Center v. USAA Cas. Ins. Comp., 16 Fla. L. Weekly Supp. 450a (13th Jud. Cir. March 2009) (medical provider’s petition for declaratory relief seeking only advisory opinion as to sufficiency of disclosure and acknowledgment form submitted by provider is dismissed); see also Doctors Urgent Care Walk-In Clinic v. First Acceptance Ins. Comp., 15 Fla. L. Weekly Supp. 624b (13th Jud. Cir. March 2008) (motion to dismiss count of complaint seeking declaratory relief as to insurance information is granted where there is no need for declaration as to breach of contract regarding PIP benefits that is real issue in case).
Count III
Based on the authority of the Florida Supreme Court holding in QBE Insurance Corp. vs. Chalfonte 94 So.3d. 541 (May 31st, 2012) [37 Fla. L. Weekly S395a]; also citing to QBE Ins. Corp. v. Dome Condo. Ass’n, 577 F.Supp.2d 1256, 1261 (S.D.Fla.2008) [21 Fla. L. Weekly Fed. D372a] (dismissing a claim for breach of the implied covenant of good faith and fair dealing because “no such cause of action exists under Florida law”); cf. Trief v. Am. Gen. Life Ins. Co., 444 F.Supp.2d 1268, 1270 (S.D.Fla.2006) [20 Fla. L. Weekly Fed. D42a] (describing plaintiff’s allegations regarding insurer’s failure to adjust, investigate, and pay claim as “resembl[ing] a claim for statutory bad faith rather than one for breach of implied obligation of good faith” and dismissing it as premature until the underlying coverage dispute was determined), it is clear that Count III of Plaintiff’s proposed Amended Statement of Claim for Breach of Implied Covenant of Good Faith and Fair Dealing is not permissible under Florida law in the instant action.RULING
Since Count II fails to demonstrate a bona fide, actual, present need for a declaration and seeks an advisory opinion from this Court; Plaintiff’s Motion for Leave to Amend the Breach of Contract action with Count II-Declaratory Judgment is hereby DENIED.
It is further ORDERED and ADJUDGED that Plaintiff’s Motion for Leave to Amend the Breach of Contract action with Count III-Breach of Implied Covenant of Good Faith and Fair Dealing is hereby DENIED.
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