20 Fla. L. Weekly Supp. 932b
Online Reference: FLWSUPP 2009ARIOInsurance — Automobile — Declaratory action — Amended petition for declaratory relief which alleges that there is dispute over coverage for automobile accident that occurred after cancellation of plaintiff’s policy but does not contest sufficiency of notice of cancellation or allege that plaintiff fulfilled statutory obligation to file appeal with Department of Financial Services fails to demonstrate bone fide, actual, present need for declaration — Motion to dismiss granted
TANIA ARIOSA, Plaintiff, vs. IMPERIAL FIRE & CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 12-275 CC 23. May 30, 2013. Jason Emilios Dimitris, Judge. Counsel: Benjamin C. Mordes, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONTO DISMISS PLAINTIFF’S AMENDED PETITIONFOR DECLARATORY RELIEF
THIS CAUSE, having come before this Honorable Court upon Defendant’s Motion to Dismiss Plaintiff’s Amended Petition for Declaratory Relief, and the Court having reviewed the pleadings, heard argument of counsel, and otherwise being fully advised of the case, it is ORDERED AND ADJUDGED, that Defendant, IMPERIAL FIRE & CASUALTY INSURANCE COMPANY’S Motion to Dismiss is GRANTED as follows:
1. On January 12, 2012, Plaintiff, TANIA ARIOSA (“Ms. Ariosa”), filed her Petition for Declaratory Relief against Defendant, IMPERIAL FIRE & CASUALTY INSURANCE COMPANY (“Imperial Fire”).
2. On December 10, 2012, Imperial Fire filed its Motion to Dismiss Plaintiff’s Complaint for failure to state a cause of action for Declaratory Relief.
3. On February 26, 2013, this Court, after hearing argument from parties, granted Defendant’s Motion to Dismiss with leave to Amend.
4. On March 11, 2013, Plaintiff filed its Amended Petition for Declaratory Relief.
5. Plaintiff’s Amended Petition sought a declaratory judgment requesting this Court find that there is coverage for any claims arising out of a November 18, 2011 motor vehicle accident.
ISSUE & FINDINGS
6. The issue before this Court is whether Plaintiff has pled an action for declaratory relief for which relief can be granted
7. 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].
8. The trial court must look only to the four corners of the complaint, and the allegations contained therein should be taken as true without regard to the pleader’s ability to prove the same. Alexander Hamilton Corp. v. Leeson, 508 So.2d 513 (Fla. 4th DCA 1987).
9. Fla. Stat. 86.021 provides:
“Any person claiming to be interested or who may be in doubt of about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable legal relations are affected by a statute. . . may have determined any question or construction or validity arising under such statute, regulation, municipal order, contract, deed, will, franchise, or other article, memorandum or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations there under.” §86.021.
10. The true purpose of declaratory judgment is to afford the parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla. 1996) [21 Fla. L. Weekly S271a]; Santa Rosa County v. Administration Com’m, Div. of Administrative Hearings, 661 So. 2d 1190, (Fla. 1995) [20 Fla. L. Weekly S333a].
11. The key to the test of sufficiency of a complaint in a declaratory judgment proceeding is whether there is a bona fide, actual, present practical need for the declaration. South Riverwalk Investments, LLC v. City of Ft. Lauderdale, 934 So.2d 620 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1977a].
12. Here, 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. Plaintiff has not alleged facts sufficient for this Court to declare the existence or nonexistence of any fact, the existence or nonexistence of any right, or the proper interpretation of any writing, as the Plaintiff has not identified said facts, or the factual or legal basis that might give rise to any immunity, power, privilege, or right.
13. In its Amended Petition, Plaintiff alleges that she was issued a policy of insurance by Imperial Fire, the policy of insurance was cancelled, Ms. Ariosa was involved in an automobile accident and there exists a dispute as to coverage for that accident. The Amended Petition did not contain an allegation contesting the sufficiency of the notice of cancellation. Furthermore, the Amended Petition did not contain a single allegation that the Plaintiff fulfilled its statutory obligations by filing an appeal with the Department of Financial Services pursuant to Fla. Stat. §627.728.
14. The Amended Petition 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 coverage for an accident that occurred after the expiration of the subject policy. Such requests by Plaintiff do not demonstrate a bona fide, actual, present need for a declaration by this Court but instead request this court to overstep its boundaries and rewrite the terms a contract. See Churchville v. GACS Inc., 973 So. 2d 1212 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D275a](holding that it is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain); Steiner v. Physicians Protective Trust Fund, 388 So. 2d 1064 (finding that Courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain)
15. To hold otherwise, would not only allow Plaintiff to circumvent the requirements of Fla. Stat. 627.728(7-8) but would also allow Plaintiff the ability to obtain a judgment finding Imperial Fire liable for claims arising out of a nonexistent contract for a risk that Imperial Fire did not assume.
16. Additionally, requesting such a determination by this Court amounts to the seeking of an advisory opinion as Fla. Stat. 627.728 does not expressly or impliedly allow a private suit be brought for purposes of enforcing or declaring violations of the statute when the appeals process, which is outlined and regulated by Sections (7) and (8) of the Statute have not been followed.RULING
17. Since the Amended Petition fails to demonstrate a bona fide, actual, present need for a declaration and seeks an advisory opinion from this Court; Plaintiff’s Complaint is dismissed. The Court retains jurisdiction to determine any costs and attorney’s fees, if the Court deems it just and proper upon filing of the proper motion.
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