24 Fla. L. Weekly Supp. 995b
Online Reference: FLWSUPP 2411DBROInsurance — Personal injury protection — Coverage — Medical expenses — Declaratory judgment — Provider’s complaint for declaratory relief as to whether insurer was permitted to pay claims with the limitations found in its 9810A policy and whether policy would preclude provider from balance billing its patient alleged all the elements of declaratory judgment action — Motion to dismiss denied
PAN AM DIAGNOSTICS SERVICES, INC. d/b/a WIDE OPEN MRI, as assignee of Dorothy Brown, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-004475 CONO 70. December 7, 2016. John Fry, Judge.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS AND ORDER DENYINGDEFENDANT’S MOTION TO STRIKEPLAINTIFF’S CLAIM FOR ATTORNEY’S FEES
THIS CAUSE came before the Court for hearing on December 7, 2016 upon consideration of the Defendant’s Motion to Dismiss Plaintiff’s Complaint for declaratory relief and Defendant’s Motion to Strike Plaintiff’s prayer for attorney fees and costs 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 Complaint I because it asserts Plaintiff has filed to allege facts sufficient to demonstrate entitlement to the declaratory relief sought and for failure to attach a copy of the policy.
2. Plaintiff’s complaint seeks declaratory judgment, alleging the Defendant paid the Plaintiff’s bill based on the language contained in its policy of insurance known as 9810A where the Defendant applied a limitation to the payment based on the terms and conditions of the policy of insurance. The Defendant’s policy, if properly amended, would also preclude the Plaintiff from balance billing its patient and the Plaintiff does not know if it could or should balance bill the patient.
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. Based on the case law, Plaintiff’s question of fact and its application to the policy falls 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. In fact, the Defendant filed suit for declaratory relief as to the whether the Defendant was permitted to pay claims with the limitations found in the 9810A policy. See State Farm v. MRI Associates of Tampa, 15-CC-000-1357 (Fla. Hillsborough County Court 2014).
7. [Editor’s note: numbering is as it appears on court order submitted to FLW Supplement.] Based on a review of the allegations in the complaint, Plaintiff’s meets all the elements of a declaratory action. Accordingly, this Court finds that Plaintiff is entitled to declaratory judgment.
8. The Defendant’s motion to strike the Plaintiff’s request for legal fees is denied. See §627.428; Royal Palm Beach v. Progressive, 502016SC000925XXXXSB (Fla. Palm Beach County Court 2016) [24 Fla. L. Weekly Supp. 458a].
9. The Defendant has 20 days to file an answer to the Plaintiff’s complaint.
