23 Fla. L. Weekly Supp. 627a
Online Reference: FLWSUPP 2306HUSEInsurance — Personal injury protection — Declaratory action — Coverage — Motion to dismiss count of medical provider’s complaint seeking declaration as to whether insured’s policy failed to clearly and unambiguously elect to limit reimbursement to statutory fee schedule and whether insurer misapplied deductible is denied
FOUNTAINS THERAPY CENTER, INC., (a/a/o Lisa Huseboe), Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-8502 (52). September 11, 2015. Giuseppina Miranda, Judge. Counsel: Michael J. Cohen, Cohen Legal Group, PA, Weston, for Plaintiff. Randall Bishop, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TODISMISS COUNT II OF PLAINTIFF’S COMPLAINT
THIS CAUSE came before the Court for hearing on September 3, 2015 upon consideration of the Defendant’s Motion to Dismiss Count II of Plaintiff’s Complaint which seeks declaratory relief relating to the application of the deductible 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. Count II of Plaintiff’s complaint requests declaratory judgment, asking the Court to find that Defendant’s automobile insurance policy failed to clearly and unambiguously elect the provisions of Florida Statute §627.736(5)(a)(2) and that Defendant has misapplied the deductible.
2. 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].
3. It is clear to this Court, after a review of Higgins v State Farm Fire and Casualty Company, 894 So.2d 5 (Fla. 2004) [29 Fla. L. Weekly S630a], 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 2005 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.”
4. When analyzing Court II of this Compliant, this Court must determine if all the elements of a declaratory action exist in order for Plaintiff to proceed under Chapter 86. A declaratory action must have the following elements:
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)).
5. When reviewing a Motion to Dismiss, the Court must view the complaint in the light most favorable to the Plaintiff and must limit its consideration to the “four corners” of the Complaint.
6. Defendant seeks to have this Court dismiss Plaintiff’s Count II because it asserts Plaintiff has failed to establish its entitlement to declaratory relief, and that this is a “straight forward breach of contract action” not warranting a declaration by this Court. It appears, at this early stage, that Defendant is improperly asking this Court to rule on the merits of Court II.
7. Based on a review of Count II, this Court finds that Plaintiff’s has met all the elements of a declaratory action. Plaintiff has properly set forth a cause of action outlining a bona fide and practical need for declaration by alleging that a controversy exists relating to the application of the insurance policy and its interplay with Florida Statutes §627.736(5)(a)(2) and the application of the deductible as outlined in Florida Statute §627.739(2).
It is therefore, ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Count II of Plaintiff’s Complaint is DENIED. Defendant may amend its Answer to address Count II of the Complaint within ten (10) days of the date of this Order.
