24 Fla. L. Weekly Supp. 843a
Online Reference: FLWSUPP 2410CHANInsurance — Personal injury protection — Med Pay — Declaratory actions — Motion to dismiss action seeking declaration as to whether insurer paid claims pursuant to hybrid method rather than reasonable amount method or statutory fee schedule, whether insurer was entitled to do so or was required to use either fee schedule or reasonable amount method, and whether insurer was entitled to rely on Multiple Procedure Payment Reduction is denied — Complaint properly sets out matter for determination within contemplation of declaratory judgment statutes — Declaratory judgment is not precluded merely because another adequate remedy is available — Motion to strike medical provider’s claim for attorney’s fees and costs is denied as premature where court has not yet entered judgment or decree that might entitle provider to fee award — No merit to argument that recovery of attorney’s fees and costs under section 627.428 is limited to cases in which plaintiff recovers benefits
PRESGAR IMAGING OF CMI NORTH, L.C., a/a/o Emmanuel Chang, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2016-006078 SP 23 (04). January 17, 2017. Jason Emilios Dimitris, Judge. Counsel: Howard W. Myones and Brandon Arrow, Law Offices of Anidjar & Levine, P.A., Fort Lauderdale, for Plaintiff. Matthew Watkins and Sebastian A. Larrea, Kirwan Spellacy and Danner, P.A., Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS,OR ALTERNATIVE, MOTION TO STRIKECLAIM FOR ATTORNEY FEES
THIS CAUSE, having come before the Court, regarding Defendant’s Motion to Dismiss, or alternative, Motion to [S]trike Claim for Attorney Fees, and the Court having reviewed the complaint, the motion, the entire court file, and all relevant legal authorities, and otherwise having been fully advised in the premises, the Court finds as follows:
I. DEFENDANT’S MOTION TO DISMISS
Plaintiff’s Complaint requests a declaratory judgment on five issues: (i) With respect to Plaintiff’s submitted PIP and Med Pay claims, did State Farm pay the Plaintiff’s claims pursuant to the Hybrid Method, instead of the Reasonable Amount Method described in Section 627.736(1)(a) and (5)(a)?; (ii) With respect to Plaintiff’s submitted PIP and Med Pay claims, was State Farm lawfully permitted to use the Hybrid Method? (iii) With respect to Plaintiff’s submitted PIP and Med Pay claims, was State Farm required to pay such claims in accordance with the Reasonable Amount Method described in Section 627.736(1)(a) and (5)(a), instead of the Hybrid Method or the Fee Schedule Method described in Section 627.736(5)(a)1-5?; (iv) With respect to Plaintiff’s submitted PIP and Med Pay claims, was State Farm required to pay such claims in accordance with the Fee Schedule described in Section 627.736(5)(a)1-5, instead of the Hybrid Method? (v) With respect to Plaintiff’s submitted PIP and Med Pay claims, was State Farm authorized to rely on MPPR, or is MPPR prohibited by Section 627.736(5)(a)(3) as a limitation on the number of treatments or other type of utilization limit?
In determining how to rule on a motion to dismiss a petition for declaratory relief, a court may only determine whether the petitioner is entitled to seek such relief, not the merits of the argument or whether the Petitioner will succeed in obtaining relief. Efforts Enters of Fla. v. Lexington Insurance Company, 666 So.2d 930 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D2442b].
The Defendant, State Farm, argues that the Plaintiff has not stated any contractual, statutory or other basis from which to assert this cause of action within the four corners of its Complaint. Furthermore, the Defendant alleges that the Plaintiff has failed to specify any right under the policy or specific policy provision under the policy of which it is in doubt. The Defendant argues that because a breach of contract action would be a more effective remedy to resolve this case, the Court should dismiss this declaratory relief action.
Pursuant to Florida Statute Section 86.011, the court may render declaratory judgment on the existence, or nonexistence of any immunity, power, privilege or right. Here, based on the clear, sufficient language of the Plaintiff’s complaint, the Plaintiff more than adequately sets out a short and plain statement of the ultimate facts the Plaintiff is alleging in its petition. When reviewing a motion to dismiss, the Court must view the complaint in the light most favorable to the Plaintiff and the court is only limited to the facts alleged within the four corners of the Complaint. Minor v. Brunetti, 43 So.3d 178, 179 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2013a]; Swerdlin v. Florida Municipal Insurance Trust, 162 So.3d 96, 97 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D2164c].
In their motion, the Defendant asserts that a declaratory count in a PIP suit is improper and that the Plaintiff is merely seeking an advisory opinion regarding Defendant’s alleged breach of contract rather than bringing the appropriate cause of action in breach of contract. In other words, according to the Defendant, Plaintiff is asking the Court to issue a declaration in this action to determine whether the Defendant breached its contract so Plaintiff can subsequently file another action against State Farm for breach of contract. This Court disagrees with the Defendant as this Court finds that the Plaintiff is not seeking advice from the court on how to proceed with this case. In fact, this Court believes the Plaintiff has the right to choose its legal strategy and this Court is unwilling to deny the Plaintiff the right to pursue its chosen legal strategy.
In response to the Defendant’s motion, the Plaintiff presented the court with the case of Bella Isla Construction Corp., v. Trust Mortgage Corporation, 347 So.2d 649 (Fla. 3rd DCA 1977). In Bella Isla, the appellant, Bella Isla, a Puerto Rican corporation, brought an action against a lender and its assignee seeking a judgment declaring a certain loan to be usurious under Florida law and that the making of the loan in Puerto Rico was a device to avoid the Florida usury law. Despite the lower court’s dismissal of the petition for declaratory relief, the 3rd DCA held that the county was allowed to bring the petition for declaratory relief to present a threshold legal question. The Court stated that “a complaint for declaratory judgment should not be dismissed unless the case is one which does not present a matter for determination within contemplation of the declaratory judgment act.” Id. at 653. The Court went on to explain that “where the declaratory judgment is properly invoked, the action should be disposed of by a judgment declaring the rights of the parties in the premises.” Id.
This Court agrees with the holding in the Bella Isla case. Like the appellant in Bella Isla, the Plaintiff in the instant action, is seeking a determination of its rights and clarification of certain ambiguities. In the instant case, those uncertainties and ambiguities arise under both the Florida PIP Statute and the Defendant’s insurance policy. Pursuant to Florida Statute 86.011, “no action or procedure is open to objection on the ground that a declaratory judgment is demanded. . .the court may render declaratory judgments on the existence or nonexistence of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will exist in the future.” Additionally, Florida Statute 86.031 states that “a contract may be construed either before or after there has been a breach of it.” The Plaintiff’s Complaint in the instant action properly sets out a matter for determination within contemplation of the declaratory judgment statutes cited above. While the Defendant argues that an adequate remedy is available to the Plaintiff in a breach of contract, 86.111 does not preclude a judgment for declaratory relief merely because another adequate remedy exists. Therefore, this Court finds that the Plaintiff is entitled to bring this action as a petition for declaratory relief.
Furthermore, the Court agrees that entertaining the Plaintiff’s action as a petition for declaratory relief prior to expending the time and effort necessary to pursue its burden of proving reasonableness, relatedness and necessity, when each of those would be moot if this Court finds that the Defendant’s insurance policy properly elects the manner in which the Defendant reimbursed the Plaintiff, is the most judicially economical approach at this juncture. This Court believes the Plaintiff is correct in its assertion that this petition for declaratory relief is in fact not a waste of judicial economy and that the Court’s ruling would end further wasting of the parties’, their counsel, and the Court’s time and energy in litigating factual matters which have no bearing on the Court’s determination of the legal sufficiency of the Defendant’s policy language.
II. DEFENDANT’S MOTION TO STRIKE PLAINTIFF’SCLAIM FOR ATTORNEY’S FEES AND COSTS
Defendant’s motion further requests the Court to rule that Plaintiff is not entitled to an award of attorney’s fees because Fla. Stat. 627.428 is limited to prosecution of suits “in which. . .recovery is had,” and that because the Plaintiff is seeking declaratory relief, Plaintiff’s request is improper.
Florida Statute Section 627.428(1) states:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
The Defendant has requested that the Court strike the portion of Plaintiff’s prayer for relief which requests that this Court award the Plaintiff its reasonable attorneys’ fees and costs. Defendant alleges that an award of attorneys’ fees is improper in cases seeking an action for declaratory relief. In support these allegations, the Defendant relies upon Progressive American Insurance Company v. Rural/Metro Corp. of Florida, 994 So. 2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]. In Rural/Metro, the 5th DCA held that because RMA will not recover insurance proceeds and because insurance proceeds were not at issue, Section 627.428 did not apply. Id. at 1209.
The Court disagrees with the Defendant for two reasons. First, Section 627.428 states upon the rendition of a judgment or decree. It is clear the Defendant’s motion is premature as the court has not entered a judgment or decree. Furthermore, the Plaintiff is not requesting that the Court enter an order granting the Plaintiff attorneys’ fees and costs at this moment. The Plaintiff has only made an allegation in its complaint that should it prevail on Count I, it will be owed attorneys’ fees and costs. As the court has not entered a judgment or decree on this matter, it would be inappropriate for the Court to determine whether or not any recovery has been had pursuant to Section 627.428(1).
Secondly, the Court disagrees with the Defendant’s analysis of Rural/Metro. The Defendant alleges that Rural/Metro stands for the proposition that if the Plaintiff does not recover actual money/benefits in its action, then there can be no recovery of attorneys’ fees and costs pursuant to Section 627.428. However, Rural/Metro makes no mention of money and/or insurance benefits. Rural/Metro makes reference to insurance proceeds.
In Travelers Indem. Ins. Co. of Illinois v. Meadows MRI, LLP, 900 So.2d 676 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D962c], a case cited in Rural/Metro, Meadows MRI was forced to file a Petition for Declaratory Relief to determine the procedures of an appraisal under an insurance policy. No monetary insurance benefits were at issue. The Court cited Insurance Co. of North America v. Lexow, 602 So.2d 528 (Fla. 1992) which stated “Florida courts have consistently held that the purpose of Section 627.428 and its predecessor is to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.” Id. at 679. The Fourth DCA held that Section 627.428 applied and saw no rationale for not extending the statute to cover an award of attorney’s fees associated with the insurer’s disputed value estimation and rules of appraisal. Id.
Pursuant to the case law cited above, this court finds that the recovery of attorney’s fees and costs under a petition for declaratory relief is not limited to cases in which the Plaintiff recovers insurance benefits/money and can extend to petitions for declaratory relief. The Court finds that the Defendant’s request to strike the Plaintiff’s Demand for Attorney’s Fees from its Complaint is premature and improper at this time.
As such, it is therefore ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Plaintiff’s Complaint for Declaratory Relief, Motion to Strike Plaintiff’s Claim for Attorney’s Fees/Costs and/or Motion for More Definite Statement is DENIED. Defendant shall respond to the Plaintiff’s Complaint within twenty (20) days.
