24 Fla. L. Weekly Supp. 365a
Online Reference: FLWSUPP 2405DECKInsurance — Personal injury protection — Declaratory action — Motion to dismiss count seeking declaration as to whether PIP policy clearly and unambiguously elected use of permissive fee schedule method of reimbursement, whether insurer is authorized to reimburse claim pursuant to hybrid method or fee schedule method rather than reasonable amount method and whether insurer is authorized to rely on Medicare Multiple Procedure Payment Reduction is denied — Issue of preemption and merits of declaratory questions are not appropriately raised in motion to dismiss
WOOLBRIGHT SPINE & REHAB, INC., a/a/o Ryan Decker, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502016SC000099XXXXSB RS. June 16, 2016. Paul Damico, Judge. Counsel: Howard W. Myones and Brandon W. Arrow, Anidjar & Levine, P.A., Fort Lauderdale, for Plaintiff. Antonio Roldan, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION TODISMISS COUNT I OF PLAINTIFF’S AMENDEDCOMPLAINT FOR DECLARATORY RELIEF
THIS CAUSE, having come before the Court, regarding Defendant’s Motion to Dismiss Count I of Plaintiff’s Amended Complaint for Declaratory Relief, and the Court having reviewed the amended 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:
Count I of Plaintiff’s Amended Complaint requests a declaratory judgment on four issues:
(a) Does the Defendant’s insurance policy clearly and unambiguously notify its insureds that it will reimburse PIP benefits using the Fee Schedule Method as its sole reimbursement method to the exclusion of all other reimbursement methods?
(b) With respect to the Plaintiff’s claims submitted under the subject insurance policy, is the Defendant lawfully authorized to reimburse such claims pursuant to the Hybrid Method described in the Defendant’s policy instead of the Reasonable Amount method described in Section 627.736(1)(a)9 and (5)(a)?
(c) With respect to the Plaintiff’s claims submitted under the subject insurance policy, is the Defendant lawfully authorized to reimburse such claims pursuant to the Fee Schedule Method described in Section 627.736(5)(a)1-5, instead of the Reasonable Amount Method described in Section 627.736(1)(a) and (5)(a)?
(d) With respect to Plaintiff’s claims submitted under the subject policy, is the Defendant authorized to rely on the 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. Effort Enters of Fla. v. Lexington Insurance Company, 666 So.2d 930 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D2442b].
The Defendant alleges that a Declaratory Judgment is not the proper vehicle for the Plaintiff to seek coverage under the applicable policy of insurance. Furthermore, the Defendant alleges that the Plaintiff has not demonstrated a bona fide need for a declaration as they have already alleged coverage. Defendant argues that Count I of the Plaintiff’s Amended Complaint, which requests declaratory relief as stated above, is redundant because the Plaintiff has also filed a breach of contract claim in which it can secure full recovery.
Pursuant to Florida Statute Section 86.011, a court may render a declaratory judgment on the existence, or non-existence of any immunity, power, privilege or right. Here, based on the clear, sufficient language of the Plaintiff’s amended complaint, there is no doubt that the Plaintiff’s Amended Complaint more than adequately sets out a short and plain statement of the ultimate facts 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].
The Defendant’s motion requests that this Court dismiss and/or strike Count I of the Plaintiff’s Complaint because this is a “straight forward breach of contract action” not warranting a declaration by this Court. This Court disagrees. “Relief in the alternative or of several different types may be demanded.” Fla. R. Civ. P., Rule 1.110(b). Furthermore, “a pleader may set up in the same action as many claims or causes of action in the same right as the pleader has, and claims for relief may be stated in the alternative. . .A party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.” Fla. R. Civ. P., Rule 1.110(g). Clearly, a party may plead and litigate inconsistent remedies as the Plaintiff has done here. Cordell v. World Insurance Company, 358 So.2d 223 (Fla. 1st DCA 1978).
Finally, Defendant’s allegations regarding preemption pursuant to Fla. Stat. §627.7311 and the allegations made in Plaintiff’s initial Complaint are improperly pled in a motion to dismiss. A court may not go beyond the four corners of the complaint to consider the legal sufficiency of the allegations contained therein. Barbado v. Green & Murphy, P.A., 758 So.2d 1173 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1084a]; Defenses such as collateral estoppel, res judicata, and the expiration of the statute of limitations are appropriately raised in the answer, and not a motion to dismiss. Id.
The court finds that the Defendant cannot attempt to dictate the type(s) or number of pleadings or causes of action properly pled by the Plaintiff. Additionally, as a motion to dismiss only tests the legal sufficiency of a complaint, it is improper for the Defendant to ask this Court to rule on the merits of Count I (Plaintiff’s Petition for Declaratory Relief) of the Plaintiff’s Amended Complaint at this stage in the proceedings.
As such, it is therefore ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Count I of Plaintiff’s Amended Complaint for Declaratory Relief is DENIED. Defendant shall respond to the Plaintiff’s Amended Complaint within 20 days of this Order.
