23 Fla. L. Weekly Supp. 642a
Online Reference: FLWSUPP 2306ORTIInsurance — Automobile — Windshield repair — Motion to dismiss count seeking declaration as to application and definition of policy term “prevailing competitive price” and effect on coverage is denied — Standing — Assignment — Motion to dismiss for failure to attach assignment to complaint is denied where complaint filed with court has attached assignment from repair shop to plaintiff insurance recovery company — Further, insurer’s claim that policy does not permit assignment is properly raised in motion for summary judgment, not motion to dismiss
BROWARD INSURANCE RECOVERY CENTER, LLC (a/a/o Carla Ortiz), Plaintiff, vs. GEICO CASUALTY COMPANY; GEICO GENERAL INSURANCE CO., GEICO INDEMNITY COMPANY, Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-16824 (52). August 24, 2015. Giuseppina Miranda, Judge. Counsel: Emilio R. Stillo, for Plaintiff. Vanessa Septien, for Defendant.
ORDER DENYING DEFENDANT’SMOTION TO DISMISS
THIS CAUSE came before the Court for hearing on July 20, 2015 upon consideration of the Defendant’s Motion to Dismiss Plaintiff’s Complaint which seeks declaratory relief in Count I and a breach of contract in Count II, and the Court’s having reviewed the motion, the entire Court file, and the relevant legal authorities, and considering argument of counsel, the Court finds as follows:
1. Defendant seeks to have this Court dismiss Plaintiff’s Count I because it asserts Plaintiff has filed to establish its entitlement to declaratory relief. Defendant seeks to have this Court dismiss Count II because Plaintiff lacks standing for two reasons (a) Plaintiff failed to attach a copy of the assignment of benefits to its Complaint and (b) because the policy specifically does not “allow an assignment of benefits without Defendant’s consent”.
2. Count I of Plaintiff’s complaint requests declaratory judgment, alleging the following: Carla Ortiz utilized Cornerstone Mobile Glass to repair/replace damage sustained to her windshield. Ms. Ortiz’s insurance policy provides for coverage with language indicating “limit of liability” and referencing “[t]he limit of our liability for loss will not exceed the prevailing competitive price”. Plaintiff asserts the policy does not define “prevailing competitive price” and that Defendant is instead utilizing the “lowest price” available. Cornerstone submitted a bill for services and Defendant failed or refused to pay for the repair. Cornerstone contends that the charge is a competitive price in the industry. Cornerstone has assigned its claim to Plaintiff. Plaintiff is seeking a declaration as to the application and definition of “prevailing competitive price” and how that definition affects coverage under the policy.
3. A motion to dismiss a petition for declaratory judgment goes only to entitlement for such a judgment, not to the merits of the case. Effort Enters of Fla. v. Lexington Insurance Company, 666 So.2d 930 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D2442b].
4. It clear after a review of Higgins v. State Fire and Casualty Company, 894 So.2d 5 (Fla. 2005) [29 Fla. L. Weekly S533a], and the cases that follow, that the Florida Supreme Court has receded from the strict application of declaratory actions described in the premier case of Columbia Casualty Co. v. Zimmerman, 62 So.2d 338 (Fla. 1952). The Supreme Court’s decision relied heavily on the 4th District Court of Appeals reasoning in State Farm Fire & Casualty Co. v. Higgins, 788 So.2d 992 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D111a] when it concluded that “[w]e believe that declaratory judgments are and can increasingly be a valuable procedure for the resolution of insurance coverage disputes. . .”. The Florida Supreme Court further concluded that “the Legislature clearly contemplated fact-finding in declaratory actions.”
5. The Defendant references several cases in its motion to dismiss the declaratory action. However, all of the cases cited by Defendant pre-date Higgins and are distinguishable from the instant case. Based on the case law, Plaintiff’s question of fact and its application to the policy fails within the meaning of Higgins.
6. Next, this Court must determine if all the elements of a declaratory action exist before Plaintiff may proceed under Chapter 86. In order for a plaintiff to prevail in a declaratory action, the following elements must be present:
a. a bona fide, actual, present practical need for the declaration;
b. the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to the state of facts or present controversy as to the state of facts;
c. some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts;
d. there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law;
e. the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answers to questions propounded from curiosity.
City of Hollywood v. Lou Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D163a] (citing City of Hollywood v. Fla. Power & Light Co., 624 So.2d 285, 286-87 (Fla. 4th DCA 1993)(citing May v. Holley, 59 So.2d 636, 639 (Fla. 1952); Robinson v. Town of Palm Beach Shores, 388 So.2d 314 (Fla. 4th DCA 1980)).
7. Based on a review of Count I, Plaintiff’s meets all the elements of a declaratory action. Accordingly, this Court finds that Plaintiff is entitled to declaratory judgment.
8. Defendant also contends that that Count II should be dismissed because Plaintiff failed to attach its assignment of benefits to the Complaint. A review of the Complaint filed with the clerk of court evidences two attachments to the Complaint. The first attachment (marked as Exhibit A) is an Assignment of Benefits from Cornerstone Mobile Glass to Broward Insurance Recovery Center, LLC. The second attachment (marked as Exhibit B) is a form from Cornerstone listing Carla Ortiz as its customer, identifying the car’s vin number. The form contains an “Assignment of Benefits and Cause of Action” section in the bottom right hand corner of the form.
9. Further, the allegation of assignment has been sufficiently pled to withstand a motion to dismiss. Parkway General Hospital Inc. v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3rd DCA 1981).
10. Additionally, Defendant’s position on the merits as to whether the policy permitted the assignment is not a matter to be disposed of by a motion to dismiss. Standing is an affirmative defense and not an issue of subject matter jurisdiction. Therefore, a proper medium through which the Defendant should challenge standing is a motion for summary judgment and not a motion to dismiss. Professional Diagnostic Reading v. State Farm Mutual Automobile Insurance Company, 20 Fla. L. Weekly Supp. 700a (April 16, 2013) citing Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a].
It is therefore, ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Plaintiff’s Complaint is DENIED.
