20 Fla. L. Weekly Supp. 622a
Online Reference: FLWSUPP 2006HARDInsurance — Personal injury protection — Declaratory judgment — Claim seeking determination of existence of rescinded policy is not appropriate for declaratory action where insured has adequate remedy at law in action for breach of contract — Count seeking recovery of lost wages is dismissed where PIP statute provides for disability benefits, not lost wages
MARY HARDY, Plaintiff(s), vs. INFINITY INDEMNITY INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2012-CC-13263, Division I. February 27, 2013. Honorable Pauline Drake, Judge. Counsel: Charles E. Fyler II, Beach Life Law, Neptune Beach, for Plaintiff. Steven J. Leiter, Leiter & Belsky, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’SMOTION TO DISMISS
THIS CAUSE having come before the Court on February 7, 2013, for hearing of Defendant, INFINITY INDEMNITY INSURANCE COMPANY’s Motion to Dismiss and having reviewed and considered the motion, Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss, and applicable case law, having reviewed the court file, having heard the argument of counsel, and being otherwise fully advised in the premises,
The Court hereby FINDS as follows:
1. On August 18, 2011, Plaintiff, MARY HARDY (hereinafter “HARDY”) was involved in a motor vehicle accident in which she is alleged to have sustained personal injuries.
2. Following her accident, HARDY made a claim for Personal Injury Protection (“PIP”) benefits under a policy of insurance which had been issued by Defendant, INFINITY INDEMNITY INSURANCE COMPANY (hereinafter “INFINITY”) but which was subsequently rescinded due to an alleged material misrepresentation by HARDY.
3. On November 8, 2012, HARDY filed the above-styled action. Count I of Plaintiff’s Complaint was for a declaratory judgment due to INFINITY’s rescission of the policy. Count II of Plaintiff’s Complaint sought recovery of lost wages for the period August 18, 2012 through November 6, 2012.
4. In response to the Complaint, INFINITY moved to dismiss Count I asserting that Plaintiff had an adequate remedy at law, namely an action for breach of contract, and that as a result, Plaintiff was not entitled to relief in equity, namely an action for declaratory relief.
5. INFINITY also moved to dismiss Count II asserting that the Florida Motor Vehicle No Fault Law provides for “disability benefits” and not “lost wages” as claimed by Plaintiff. Additionally, INFINITY asserted that Plaintiff’s claim was premature because the benefits claimed were through November 6, 2012 and were therefore not overdue at the time Plaintiff filed her lawsuit on November 8, 2012.
6. In Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss, Plaintiff asserted that she is entitled to seek declaratory relief as alleged in her Complaint and that she does not have an alternative and adequate legal remedy at law. As to Count II, Plaintiff asserted that Defendant’s motion would require the Court to consider matters outside the four corners of the Complaint and that Count II had adequately pled Plaintiff’s compliance with conditions precedent to recover benefits.
Wherefore upon the foregoing findings, the Court hereby concludes that Defendant’s Motion to Dismiss should be and hereby is GRANTED, as follows:
A. With regard to the first issue raised by INFINITY’s Motion to Dismiss, the Court finds, as a matter of law, that Plaintiff’s action is a matter of contract, i.e., the issue is whether there was a contract in existence between HARDY and INFINITY and whether INFINITY breached that contract. Accordingly, Plaintiff’s claim against INFINITY is not appropriate for a declaratory action as Plaintiff has an adequate remedy at law against INFINITY in breach of contract.
B. With regard to the second issue raised by INFINITY’s Motion to Dismiss, the Court finds, as a matter of law, that the Florida Motor Vehicle No-Fault Law, Fla. Stat. §627.736(1)(b) provides for “disability benefits” which are distinguishable from “lost wages”. Specifically, recovery of disability benefits requires a physician’s certification that someone has a disability which has caused someone to miss time from work, whereas lost wages only means that someone has missed time from work which could result from a number of reasons other than an actual disability.
WHEREFORE, based upon the foregoing findings of fact and conclusions of law, it is hereby
ORDERED and ADJUDGED that Defendant, INFINITY INDEMNITY INSURANCE COMPANY’s Motion to Dismiss is GRANTED.
It is further ORDERED and ADJUDGED that the granting of Defendant’s Motion to Dismiss is without prejudice to Plaintiff to file an amended complaint.
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