23 Fla. L. Weekly Supp. 373a
Online Reference: FLWSUPP 2304GWILInsurance — Personal injury protection — Declaratory action — Medical provider is entitled to determination of its rights under PIP contract — Motion to dismiss counts seeking declaratory relief is denied
LAWRENCE ALEXANDER MD PA, a/a/o GLORIA WILLIAMS, Plaintiff, v. ASCENDANT COMMERCIAL INSURANCE, INC., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 15-003656, Division 54. July 20, 2015. Stephen J. Zaccor, Judge. Counsel: Michael J. Cohen, Cohen Legal Group, PA, Weston, for Plaintiff. Daniel Mojena, for Defendant.
ORDER DENYING DEFENDANT’SMOTION TO DISMISS
THIS CAUSE having come before the Court on July 20, 2015, on Defendant’s Motion to Dismiss Counts II and III of the Complaint and the Court having heard argument of counsel, having reviewed the court file, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
The Plaintiff filed a three count complaint on February 18, 2015 alleging in Count I Breach of Contract, and seeking in Counts II and III Declaratory Relief. The Defendant moves to dismiss Counts II and III because the P.I.P. statute1 only allows for one cause of action — Breach of Contract.
A motion to dismiss tests the legal sufficiency of the complaint. Bess v. Eagle Capital, Inc., 704 So.2d 621 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2571a]. A court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations. Id.; Sigma Fin. Corp. v. Investment Loss Recovery Servs., Inc., 673 So.2d 572 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1189d]; Fish v. Post of Amvets No. 85, 560 So.2d 337, 339 (Fla. 1st DCA 1990).
Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1084a]. Furthermore, the Court must accept all material allegations as true and may not speculate as to whether the Plaintiff will be able to prove them. Id.
Fla. Stat. §86.021 provides:
Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.
Fla. Stat. § 86.021 (2015)(emphasis added). The plain language of this statute provides the authority for the Plaintiff to determine its rights under the P.I.P. contract that is the basis for this lawsuit.
Therefore, it is:
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is hereby DENIED.
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1Fla. Stat. §627.736 (2013)
