22 Fla. L. Weekly Supp. 967b
Online Reference: FLWSUPP 2208MKLEInsurance — Personal injury protection — Declaratory actions — Motion to dismiss declaratory action on ground that PIP policy was not attached to complaint is denied where action was filed by medical provider not typically in possession of policy, and insurer denied provider’s pre-suit request for policy — Motion to dismiss on ground that insured is minor who lacks capacity to assign benefits is denied — Provider’s motion to amend complaint to more specifically allege equitable assignment is granted
RAYMOND D. CLITES, DC, PA a/a/o McKenzie Klemkosky, Plaintiff, v. USAA GENERAL IND. CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-12963 COCE 52. February 23, 2015. Giuseppina Miranda, Judge. Counsel: Russel Lazega, Florida Advocates, Dania Beach, for Plaintiff. Scott Dutton, Dutton Law Group, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND GRANTING PLAINTIFF LEAVE TO AMEND THE COMPLAINT
THIS CAUSE came before the court on Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint and on Plaintiff’s Ore Tenus Motion to Amend the Amended Complaint and the court, having heard argument and being otherwise advised in the matter, hereby finds as follows:
FACTUAL BACKGROUND:
This is an Action for Declaratory Relief brought with regards to the question of whether the available PIP coverage in the instant case is up to a limit of $10,000.00 or whether the coverage is limited to $2,500.00. Defendant has moved to dismiss the complaint on two grounds: 1) the insurance policy in question was not attached to the lawsuit and 2) the patient in the instant case was a minor (8 years old) and therefore had no capacity to assign benefits. Plaintiff responds that: 1) the complaint is for declaratory relief not breach of contract and that in the instant case, Plaintiff requested the contract from Defendant pre-suit and Defendant refused to provide it and 2) that the assignment is valid as it was signed by the patient’s mother but that she simply signed in the space for “Signature of Patient” on behalf of her minor child.
CONCLUSION OF LAW: Addressing each point in turn:
Policy not Attached to Complaint: The court DENIES Defendant’s Motion to Dismiss as to the question of failing to attach the policy to the complaint. This case is brought by an assignee medical provider which is different than cases where the insured (who may likely have a copy of the insurance policy) has failed to attach the insurance policy. The health care provider is typically not in possession of the insurance policy. Moreover, in the instant case it appears the policy was requested pre-suit and the insurer replied that it was “not required to respond.” Accordingly, the court rejects this argument.
Minor Lacked Capacity to Assign Benefits: As to the question of standing the court DENIES the Motion to Dismiss and GRANTS Plaintiff’s Ore Tenus Motion to Amend the Complaint. While the complaint alleges generally that the Claimant equitably assigned benefits to Plaintiff, the court would like to have the allegations spelled out as to the authority of the signatory of the assignment and Plaintiff has agreed to amend to reference these allegations.
ACCORDINGLY, it is hereby ORDERED that Defendant’s Motion to Dismiss is hereby DENIED and Plaintiff’s Motion to Amend the Complaint is GRANTED. Plaintiff will amend within 15 days of this order and Defendant shall have 20 days from e-service of the amended complaint to respond.
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