26 Fla. L. Weekly Supp. 691a
Online Reference: FLWSUPP 2608DCHAInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Gratuitous payments — Insurer’s motion for summary judgment based on exhaustion of PIP benefits is denied where medical provider filed counter-evidence tending to show that insurer paid invalid claims to other providers, adjusted other claims improperly, and handled claims in bad faith — No merit to argument that plaintiff provider does not have standing to challenge payments to other providers
CEDA ORTHOPEDICS & INTERVENTIONAL MEDICINE OF SOUTH MIAMI, a/a/o Donovan Chang, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2018-12503-CC-25 (02). October 18, 2018. Elijah Levitt, Judge. Counsel: Edward G. Jimenez, Diverse Legal Solutions, a Law Firm, Inc., Miramar, for Plaintiff. Lissette M. Alvarez, Kirwin, Spellacy & Danner, P.A., Ft. Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TODISMISS COUNT II OF PLAINTIFF’S COMPLAINT
THIS CAUSE having come before the Court on September 13, 2018, on Defendant’s July 18, 2018, Motion to Dismiss Count II of Plaintiff’s Complaint, and the Court, having heard the argument of the parties, having reviewed the Motion and the relevant legal authorities, and having been otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED:
For the reasons contained herein, Defendant’s Motion is DENIED.
FACTUAL SUMMARY
On June 13, 2018, Plaintiff filed a Complaint against Defendant averring non-payment of personal injury protection insurance benefits in violation of Florida Statute Section 627.736 for services rendered as a result of an alleged February 10, 2017, motor vehicle accident. Count I of the Complaint is a breach of contract action. Count II seeks a declaration of Plaintiff’s rights under the policy as to (1) whether Florida Statute Section 627.736(5)(a)(2) is permissive in nature and (2) whether Defendant was required to state its intention to rely on the fee schedules identified in Florida Statute Section 627.736(5)(a)(2) in order to limit reimbursement and if Defendant did, in fact, so state in the subject policy.
APPLICABLE LAW
Declaratory judgments in Florida are governed by Chapter 86 of the Florida Statutes. Florida Statute Section 86.011 provides:
The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
(1) Of any immunity, power, privilege, or right; or
(2) 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 arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.
§ 86.011, Fla. Stat. To consider an action for declaratory relief, Florida law requires that:
there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that 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; that 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 answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.
Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, 661 So.2d 1190, 1192-93 (Fla.1995) [20 Fla. L. Weekly S333a] (citations omitted).
When reviewing a motion to dismiss, the Court must view the complaint in the light most favorable to Plaintiff; further, the court is 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. Fla. Mun. Ins. Trust, 162 So. 3d 96, 97 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D2164c].HOLDING
Plaintiff’s Complaint adequately sets out a short and plain statement of the ultimate facts showing that Plaintiff is entitled to relief. See Fla. R. Civ. P. 1.110(b). “In determining the sufficiency of a complaint for declaratory judgment, the question is whether the plaintiff is entitled to a declaration of rights, not whether the plaintiff will prevail in obtaining the decree he or she seeks.” Smith v. City of Ft. Myers, 898 So. 2d 1177, 1178 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D902a]. In accordance with the provisions of Florida Statute 86.011, Plaintiff’s Complaint expresses a doubt about whether Plaintiff has the right to pursue a lawsuit under Florida Statute Section 627.736 based on the language of Florida Statute Section 627.736(5)(a)(2). Plaintiff seeks a declaration of its rights and legal relations with Defendant under the insurance policy and Florida law. Therefore, under a plain reading of Florida Statute Section 86.011, Count II of the Complaint passes scrutiny.
The Fourth District Court of Appeal has twice ruled against Defendant under similar circumstances. See NW Ctr. for Integrative Med. & Rehab. v. State Farm Mut. Auto. Ins. Co., 214 So. 3d 679 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D446b]; Green v. State Farm Mut. Auto. Ins. Co., 225 So. 3d 229 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1119a]. These cases both found that declaratory judgment actions are a proper legal mechanism for determining the application of the Medicare fee schedule under Florida Statute Section 627.736(5)(a)(2). See id. This Court acknowledges that the issue in those cases was whether the Medicare fee schedule applied if it was not provided in the subject policy. See id. The issue in the present case is slightly different because an election to use the Medicare fee schedule allegedly was provided in the policy. Nonetheless, on a Motion to Dismiss, this Court may only look to the four corners of the Complaint. See Swerdlin v. Fla. Mun. Ins. Trust, 162 So. 3d at 97 [39 Fla. L. Weekly D2164c]. The extent and validity of the Medicare fee schedule election remain to be determined. Therefore, this Court will follow the guidance provided by the Fourth District Court of Appeal and allow the declaratory action to proceed.
While the Defendant argues that an adequate remedy is available to the Plaintiff in a breach of contract action, Florida Statute Section 86.011 does not preclude a judgment for declaratory relief merely because another adequate remedy exists. See Presgar Imaging of CMI North, L.C., a/a/o Emmanuel Chang v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 843a (Fla. Miami-Dade Cty. Ct. 2017). Indeed, Florida Statute Section 86.011 provides that the individual may “also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.” Such is the case at hand.
Based on the foregoing, the Court hereby permits both counts to proceed. See also Ocean’s 11 Bar & Grill, Inc., v. Indemnity Ins. Corp. of DC, No. 11-61577-CIV-CMA, 2011 WL 3843931 (S.D. Fla. 2011) (Allowing breach of contract and declaratory actions to proceed in tandem).
