23 Fla. L. Weekly Supp. 770a
Online Reference: FLWSUPP 2307JONEInsurance — Declaratory judgments — Personal injury protection — Medpay — Complaint seeking declaration concerning insurer’s duty to pay for mechanical traction on various service dates dismissed based on finding that there is no bona fide, actual present practical need for declaration sought by plaintiff and that the relief sought amounts to seeking legal advisory opinion from the court
AMBROSE B. JONES, an insured individual by and through his/her assignee, PROGRESSIVE MEDICAL GROUP, P.A., Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 15-CC-028047-U. November 10, 2015. Honorable Frances M. Perrone, Judge. Counsel: Xavier J. Jackman, Westchase Legal Group, Tampa, for Plaintiff. Roy A. Kielich, Oxendine and Oxendine, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come to be heard on November 2, 2015 upon the Defendant’s Motion to Dismiss, and the Court having reviewed the file, having heard arguments from counsel, and being otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law:
PLAINTIFF’S ALLEGATIONS
1. The Plaintiff has brought the instant cause of action seeking declaratory judgment pertaining to an automobile policy issued by the Defendant, and pertaining to Personal Injury Protection (“PIP”) and Medical Payment (“MedPay”) coverage provided under said insurance policy.
2. The Plaintiff alleges that the claimant, AMBROSE JONES, was injured in an automobile accident on or about May 30, 2014 and that as a result, he received medical care and treatment from the Plaintiff, PROGRESSIVE MEDICAL GROUP, P.A. The Plaintiff further alleges that the Defendant has denied coverage under the PIP and MedPay provisions of the subject insurance policy for the reasonably necessary medical bills incurred as a result of the aforementioned motor vehicle accident, specifically CPT Code S9090 (Mechanical Traction) on several service dates. See Plaintiff’s Petition for Declaratory Relief, ¶¶ 6-16.
3. The Plaintiff therefore requests a declaration from this Court “surrounding the question of whether or not Defendant must pay for Code S9090 pursuant to the terms and conditions of the subject insurance policy and Fla. Stat. §627.736.” See Plaintiff’s Petition for Declaratory Relief, ¶¶ 16-17.CONCLUSIONS OF LAW
4. A motion to dismiss is a question of law which tests the legal sufficiency of the Plaintiff’s complaint. It is well settled law that all reasonable inferences in the complaint are to be taken as true and a court is not to look beyond the four corners of the complaint and its attachments in making its decision on a motion to dismiss. See Swope Rodante, P.A. v. Harmon, 85 So. 3d 508, 509 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D725c] (citing Al-Hakim v. Holder, 787 So. 2d 939, 941 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1380d]); Fla. R. Civ. P. 1.131(b).
5. In order to maintain an action for declaratory relief, the pleader must demonstrate that (1) there is a bona fide, actual, present practical need for the declaration; (2) the declaration deals with a present, ascertained, or ascertainable state of facts or controversy; (3) that there is some person who has or reasonably may have and actual, present, adverse, and antagonistic interest in the subject matter; and (4) that the relief sought is not merely the giving of legal advice by the Court. See Santa Rosa County v. Admin. Comm’N, Div. of Admin. Hearings, 661 So. 2d 1190, 1192-93 (Fla. 1995) [20 Fla. L. Weekly S333a] (citing May v. Holley, 50 So. 2d 636, 639 (Fla. 1952)). Absent a bona fide need for a declaration based on present, ascertainable facts, this Court lacks jurisdiction to render declaratory relief. Id. at 1193.
6. The Court finds that there is no bona fide, actual, present practical need for the declaration sought in the instance, and that the relief sought amounts to seeking a legal advisory opinion by the Court. See Santa Rosa County, 661 So. 2d at 1192-93 (citing May, 50 So. 2d at 639).
Accordingly, it is hereby
ORDERDED AND ADJUDGED that the Defendant’s Motion to Dismiss is hereby GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff shall have sixty (60) days from the date of the hearing in which to file an amended Complaint for Breach of Contract, should it choose to do so.
