22 Fla. L. Weekly Supp. 393a
Online Reference: FLWSUPP 2203PLUMInsurance — Personal injury protection — Coverage — Emergency medical condition — Declaratory action — Question of whether, under amendments to PIP statute requiring PIP insurer to pay benefits up to $10,000 if qualified medical provider has determined that claimant had emergency medical condition and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have emergency medical condition, reimbursement limit of $10,000 or $2,500 is applicable when record is silent as to existence of emergency medical condition is proper matter for declaratory relief — Motion to dismiss is denied
PRECISION DIAGNOSTICS, INC., a Florida Corp. (a/a/o Plumer, David), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-1683 COCE 50. September 11, 2014. Peter B. Skolnik, Judge. Counsel: Russel Lazega, Florida Advocates, Dania Beach, for Plaintiff. Camille Riviere, Law Office of Neil Singh, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS (EMC DECLARATORY ACTION)
This action came before the Court on Defendant’s Motion to Dismiss Plaintiff’s Complaint for Declaratory Relief regarding whether the scope/amount of PIP coverage is $10,000 or $2,500 for the instant claim. The court, having considered the motions, the filings and arguments of counsel finds as follows:
FACTUAL BACKGROUND: This is an action for declaratory relief concerning construction of the 2013 P.I.P. statute. Specifically, Plaintiff has alleged the existence of a dispute with the Defendant concerning the construction of the 2013 PIP statute and whether it would afford the Plaintiff $10,000 in available coverage for this loss or whether it may be limited to $2,500 in coverage as the Defendant suggests. At the heart of the matter is construction of F.S. s. 627.736(1)(a) which sets forth the required PIP benefits as being available to a $10,000 limit for medical expenses and $5,000 for death benefits but then goes on to provide what appear to be limitations or exclusions as follows:
3. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition.
4. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. is limited to $2,500 if a provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.
The question raised by the declaratory action is essentially “what happens if the medical record is silent as to whether there is or is not an EMC?” Are the available benefits $10,000 or are they $2,500? Plaintiff contends that the only limitation set forth in the PIP statute allowing an insurer to lower the available benefits is subsection (4) above which requires an affirmative determination of “NO EMC” by a provider and that any provision that’s an exclusion or limitation on coverage must be construed broadly in favor of finding the broadest possible coverage (particularly in a mandatory No-Fault insurance context). Defendant contends that the statute plainly requires that a qualified physician must certify to the insurer that an EMC exists before any obligation to pay the $10,000 limit applies. In response to the Declaratory Action, the Defendant asserts that the matter is not a proper matter for declaratory relief and that dismissal is proper. Plaintiff responds that the elements for declaratory relief are properly pled and must be accepted as true for purposes of considering a motion to dismiss.
CONCLUSIONS OF LAW: The court agrees with the Plaintiff that a cause of action for declaratory relief has been stated. The question presents a valid dispute as to an unsettled (and intriguing) issue concerning the construction of F.S. s. 627.736(1)(a)(2012) that spurred disagreement. Plaintiff has alleged a valid present and actual controversy that affects its ability to be paid and the matter is properly before the court by way of a declaratory action. See Bayfront Medical Center, Inc. v. Garrison Property & Cas. Co., 21 Fla. L. Weekly Supp. 929a (Pinellas Cty. Ct. 2014).
ACCORDINGLY, IT IS ADJUDGED that
1. Defendant’s Motion to Dismiss is Denied.
2. Defendant shall answer the complaint within 20 days of this order.
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