24 Fla. L. Weekly Supp. 866b
Online Reference: FLWSUPP 2410LAPOInsurance — Personal injury protection — Declaratory actions — Action for declaratory judgment is improper in first-party PIP case where judgment on breach of contract count of complaint will provide full, adequate, and complete relief
ALLIANCE SPINE AND JOINT III, INC., a Florida Corporation, as Assignee of Katia Lapointe, Plaintiff, v. TRAVELERS COMMERCIAL INSURANCE COMPANY, A For-profit Insurance Company, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2015-012907 SP 23 (04). April 29, 2016. Jason Emilios Dimitris, Judge. Counsel: Benjamin J. Vazquez, Shaked Law Firm, P.A., Aventura, for Plaintiff. John S. Leinicke, ROIG Lawyers, Deerfield Beach, for Defendant.
ORDER GRANTING DEFENDANT’SMOTION TO DISMISS COUNT II OFPLAINTIFF’S COMPLAINT
This matter came before the Court on April 19, 2016 for argument on the October 29, 2015 motion of TRAVELERS COMMERCIAL INSURANCE COMPANY’S (“Defendant”) to dismiss Count II of ALLIANCE SPINE AND JOINT III, INC. a/a/o Katia Lapointe (“Plaintiff”) Complaint. The Court, having heard argument of counsel and being otherwise advised in the premises, hereupon GRANTS the Defendant’s motion on the following authority:
Plaintiff filed a two count complaint regarding coverage for first party personal injury protection insurance claim under a policy of insurance issued by Defendant, in which a breach of contract is alleged in Count I, and a declaratory judgment from the Court is requested in Count II.
Plaintiff’s action for declaratory judgment is improper in a first party action. Legion Ins. Co. v. Moore, 846 So.2d 1183 (Fla. 4th DCA 2004) [28 Fla. L. Weekly D1195a]. In Legion, the Fourth District upheld the dismissal of a declaratory judgment action regarding first party insurance coverage. In distinguishing its decision in State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992 (Fla 4th DCA 2001) [26 Fla. L. Weekly D111a], approved, Higgins v. State Farm Fire & Cas. Co., 984 So.2d 5 (Fla. 2004) [29 Fla. L. Weekly S533a], the Fourth District noted significantly:
Declaratory judgment actions afford an important remedy in regard to insurance coverage questions, especially as to claims made by third parties against someone covered by the policy. Where a question of coverage is raised in that circumstance, there is a delicate problem between the insured and the carrier relating to the defense of the suit by the third party. It is important then that the question of coverage be expeditiously determined, if possible, so that the parties under the contract of insurance may achieve the benefit of their bargain of contractual rights and obligations, which might be lost otherwise. . .
In this case, however, we face not a third party but a first party claim by one of the contracting parties directly against the other party under the policy of insurance. . . .
Unlike the circumstances arising with third party claims in which the issue of a defense of a suit against the insured is at stake, here we face nothing more than a mine-run, disputed UM claim as to which the issue is whether the nature of the accident places the claim within such coverage. . . In short, there is a logical basis for the court’s determination that a declaratory judgment action would not serve any useful purpose under the circumstances of this case and might impair or defeat rights of the parties.
Legion, 846 So.2d at 1186-81 (emphasis added)1
Florida appellate law further holds that in PIP actions such as the one here, declaratory judgment actions are improper. Cruz v. Union General Insurance, 586 So. 2d 91 (Fla. 3d DCA 1991). The facts in Cruz are nearly identical to those in the instant case: Cruz was insured by Union General Insurance for PIP. He was injured in an automobile accident and underwent an independent medical examination. After receiving the medical report, Union General notified Cruz it would no longer make voluntary payments for medical bills. Cruz sued Union General for breach of contract and declaratory relief. In the count for declaratory relief, Cruz sought a determination whether, under the Florida Motor Vehicle No-Fault Law, the medical report could properly form the basis for a denial of his accrued and future medical expenses. The Third District noted:
The trial court was correct in dismissing the action for declaratory relief. Cruz’s claim for incurred medical expenses requires a purely factual determination of whether his medical expenses were “reasonable, related, or necessary.” Section 627.736(7). Questions of fact will not support a declaratory relief action. Cruz’s avenue of redress, therefore, is an action for breach of contract, which remains pending.
Cruz, 586 So. 2d at 91 (internal citations omitted)
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. 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.
Declaratory relief is not available “where the object of the action is to try disputed questions of fact as the determinative issue, rather than to seek a construction of definite stated rights, status, or other relations.” X Corp. v. Y Person, 622 So. 2d 1098 (Fla. 2d DCA 1993). 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. 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. In such cases where the claim for declaratory judgment is duplicative (i.e., subsumed within) a claim for breach of contract, dismissal is appropriate as the plaintiff is “in effect. . .actually seeking legal advice from the court as to the correct procedure to follow in litigating this case.” McIntosh v. Harbour Club Villas, 468 So. 2d 1075, 1080-81 (Fla. 3d DCA 1985) (Nesbitt, specially concurring). 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 Complaint. Judgment on Count I will provide full, adequate, and complete relief for the Plaintiff as described in the above authority.
THEREFORE, the Defendant’s Motion to Dismiss Count II of Plaintiff’s Complaint is GRANTED.
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1In its affirmance of the Fourth DCA’s decision in Higgins, the Florida Supreme Court affirmed a party’s ability to bring a declaratory action in a third-party property action, recognizing a limited exception with respect to the issue of coverage as it relates to an insurance company’s duty to defend. The Supreme Court made no mention of the Legion decision, thus leaving the Fourth DCA’s reasoning intact (especially regarding the distinction between filing an action for declaratory relief in a third-party action versus a first–party action).
