20 Fla. L. Weekly Supp. 287a
Online Reference: FLWSUPP 2002BETAInsurance — Personal injury protection — Declaratory judgment — Medical provider’s petition for declaratory relief seeking only advisory opinion as to insurer’s liability for denied claim for PIP benefits is dismissed
HEALTH-AIDE PAIN & WEIGHT MANAGEMENT, INC., a/a/o Olga Betancourt, Plaintiff, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 10-CC-033799, Division H. March 1, 2012. Honorable Margaret T. Courtney, Judge. Counsel: Thomas J. Dandar, Dandar & Dandar, P.A., Tampa, for Plaintiff. Chad C. Guzzo, Masten, Peterson & Denbo, LLC, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISSCOUNT I OF PLAINTIFF’S COMPLAINT
THIS CAUSE, having come for consideration upon Defendant’s Motion to Dismiss Count I of Plaintiff’s Complaint (“Motion to Dismiss”), and the Court having heard argument and being fully advised in the premise finds as follows:BACKGROUND
1. On December 15, 2010, Plaintiff, Health-Aide Pain & Weight Management, Inc., as assignee of Olga Betancourt, filed a five count complaint against Defendant, Allstate Property & Casualty Insurance Company (“Allstate”), which included one count for declaratory relief. Since Count I-Declaratory Judgment Action (“Count I”) is the only count relevant to the subject Motion to Dismiss, it will be the only count addressed in this Order.
2. Count I sought a declaratory judgment from this Court finding that Plaintiff is entitled to payment of the medical bills it submitted to Allstate if coverage existed for the subject motor vehicle accident.
3. Specifically, Plaintiff alleges in Count I that Allstate is liable, under both Florida’s No-Fault law and the subject policy of insurance, for up to $6,935.68 of the $8,669.60 in total medical bills submitted to Allstate under the subject claim. Pl.’s Comp. ¶ 11 (Dec. 15, 2010). The $6,935.68 represents 80% of the total amount billed, $8,669.60.
4. Plaintiff’s Complaint states that the subject insurance policy provided $10,000.00 in Personal Injury Protection (“PIP”) coverage per person. Id. at ¶ 5.
5. Plaintiff alleges that it: (1) gave timely notice of its claim to Allstate; (2) submitted all medical bills to Allstate; and (3) complied with all conditions precedent prior to bringing “this action.” Id. at ¶ 8.
6. Plaintiff further states that after it sent a Florida Statute §627.736(10) pre-suit demand to Allstate, Allstate denied PIP coverage for the subject claim and “refused to pay” for medical services that were reasonable, related, and necessary to the subject accident. Id. at ¶ 10.
7. Count I requests that this Court declare that “there is coverage for the medical services provided by the Plaintiff” such that “Plaintiff is entitled to payment for said services, plus costs of this action, statutory penalties, pre judgment interest, attorney fees, and other relief as the court may deem just in the premises. . . .” Id.ISSUE & FINDINGS
8. The issue before this Court is whether Plaintiff has pled an action for declaratory relief for which relief can be granted.
9. Florida Rule of Civil Procedure 1.140 states in part:
Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: . . . (6) failure to state a cause of action. . .
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10. A motion to dismiss seeks the trial court to “determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal.” Nero v. Continental Country Club R.O., Inc., 979 So. 2d 263, 267 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D2951b].
11. “When ruling on a motion to dismiss for failure to state a cause of action, the trial court must treat as true all of the . . . complaint’s well-pleaded allegations, including those that incorporate attachments, and to look no further than the . . . complaint and its attachments.” Romo v. Amedex Ins. Co., 930 So. 2d 643, 648 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D571a].
12. 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.
13. 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).
14. 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 I addresses what Plaintiff perceives as Allstate’s refusal to pay medical bills that were reasonable, related, and necessary to the subject motor vehicle accident. Plaintiff further alleges in Count I that Plaintiff provided Allstate 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 Allstate. Such perceptions of a refusal to pay by Allstate 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 and not an action for declaratory relief. Accordingly, Count I of Plaintiff’s Complaint does not demonstrate a bona fide, actual, present need for a declaration by this Court.
15. Count I 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 up to $6,935.68 of the $8,669.60 in total medical bills it submitted to Allstate if coverage existed for the subject motor vehicle accident. Plaintiff further seeks, under Count I, statutory penalties, pre judgment interest, attorney’s fees, and costs. 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.
16. 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 Allstate 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 entitled to payment of PIP benefits for same.
17. 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.
18. 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).RULING
19. Since Count I fails to demonstrate a bona fide, actual, present need for a declaration and seeks an advisory opinion from this Court; Count I-Declaratory Judgment Action of Plaintiff’s Complaint is dismissed. It is further ordered and adjudged that Plaintiff is not entitled to recover any attorney fees or costs related to Count I-Declaratory Judgment Action of Plaintiff’s Complaint.
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