23 Fla. L. Weekly Supp. 765a
Online Reference: FLWSUPP 2307GOSIInsurance — Declaratory action — Count of amended complaint seeking declaration as to whether insurer paid proper reimbursement to medical provider is dismissed where provider states that parties are in disagreement but has failed to alleged sufficient factual basis to demonstrate bona fide, actual, present practical need for declaration, and judgment on count of complaint alleging breach of contract will provide full relief for provider
INTERVENTIONAL SPINE SPECIALIST, LLC, A/A/O Tiffany Gosine, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-6798SP23(06). October 22, 2015. Spencer Multack, Judge. Counsel: Sagi Shaked, Shaked Law Firm PA, for Plaintiff. Narcy Fajardo, Law Offices of Camille D. Riviere, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISSCOUNT II of PLAINTIFF’S AMENDED COMPLAINT
This matter came before the Court on September 9, 2015 for argument on the motion of PROGRESSIVE AMERICAN INSURANCE COMPANY (“Defendant”) to dismiss Count II of the Plaintiff’s Amended Complaint by INTERVENTIONAL SPINE SPECIALIST, A/A/O Tiffany Gosine (“Plaintiff”). The Court grants the Defendant’s motion on the following authority:
The purpose of an action for declaratory relief is to declare rights, status, and other equitable or legal relations, and is generally brought by a party to a contract who is in doubt as to his or her rights under the contract (based upon an ambiguity in the contract). The action generally seeks a ruling by the court interpreting and construing an ambiguous policy or applicable statutory provision. See Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996) [21 Fla. L. Weekly S271a]; State Farm Mut. Auto. Ins. Co. v. Marshall, 618 So. 2d 1377 (Fla. 5th DCA 1993). The test of sufficiency of a complaint in such a proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. Lutz v. Protective Life Ins., 951 So. 2d 884 (Fla. 2007) [32 Fla. L. Weekly D160a].
The Florida Supreme Court explained in May v. Holley, 59 So. 2d 636 (Fla. 1952), that
Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that 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; that the antagonistic and adverse interests 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 answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.
Count II of the Plaintiff’s Amended Complaint states:
27. The Defendant believes that the Plaintiff is not entitled to full insurance proceeds under the Policy as evidenced by its failure to provide full and prompt payment.
28. The Plaintiff believes that the Plaintiff is entitled to seek full insurance proceeds under the Policy.
Here, Plaintiff has failed to allege a sufficient factual basis to demonstrate that there is a bona fide, actual, present need for a declaration by this Court. Stating that the parties are in “disagreement” is insufficient. Plaintiff has not alleged facts sufficient for this Court to declare the existence or nonexistence of any fact, the existence or nonexistence of any right, or the proper interpretation of any writing, as the Plaintiff has not identified said facts, or the factual or legal basis that might give rise to any immunity, power, privilege, or right. In the case sub judice the Court is faced with the factual determination if the proper reimbursement was paid to the Plaintiff. On its face the Plaintiff’s complaint is simply a claim for breach of contract, as properly pled in Count I.
Furthermore, a trial court should not entertain an action for declaratory judgment on issues which are properly raised in other counts of the pleadings and already before the court, through which Plaintiff can secure full, adequate and complete relief. McIntosh v. Harbour Club Villas Condo Ass’n, 468 So.2d 1075 (Fla. 3rd DCA 1985). In Taylor v. Cooper, 60 So.2d 534 (Fla. 1952) the Florida Supreme Court found that a relief for declaratory judgment could not be sought in that particular case, as it is, “the universal rule to the effect that if at the time the proceeding for a declaratory decree is initiated, a suit is already pending which involves the same issues and in which litigation the plaintiff in the declaratory decree action may secure full, adequate, and complete relief, such bill for declaratory decree will not be permitted to stand.” In the matter sub judice, the Plaintiff pled Breach of Contract in Count I of the Amended Complaint. Judgment on Count I will provide full relief for the Plaintiff as described in the above authority.
THEREFORE, the Defendant’s Motion to Dismiss Count II of Plaintiff’s Amended Complaint is GRANTED.
