27 Fla. L. Weekly Supp. 285a
Online Reference: FLWSUPP 2703CORTInsurance — Personal injury protection — Coverage — Medical expenses — Declaratory action — Action seeking determination as to whether policy language requires insurer to pay full amount of charge submitted when amount of charge is less than amount allowed under statutory fee schedules is appropriate declaratory action — Neither fact that determination may affect amount of benefits owed nor fact that medical provider could have brought breach of contract action precludes declaratory action — Pre-suit demand letter is not condition precedent to bringing declaratory action — Motion to dismiss denied
TLC CHIROPRACTIC, INC. a/a/o Ruben Cortes, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2018 CC 003011. April 28, 2019. Stephen Sebastian Everett, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, for Plaintiff. Kara Cosse and Brian Chojnowski, Kupicki Draper, P.A., for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come for hearing on April 23, 2019 on Defendant’s Motion to Dismiss, the Court rules as follows:
Plaintiff, TLC CHIROPRACTIC, as the real party in interest pursuant to an Assignment of Benefits, filed a declaratory action seeking a judicial determination as to its coverage rights and an interpretation of the Defendant’s, GEICO, FLPIP (01-13) policy language. Specifically, the Plaintiff asks whether Geico’s policy affords greater coverage than that required pursuant to F.S. 627.736 regarding a claim for personal injury protection (“PIP”) benefits. The language at issue properly elects the “permissive” payment methodology of F.S. 627.736(5)(a)1 (2012), but also includes the following language:
A charge submitted by the provider, for an amount less than the amount allowed, shall be paid in the amount of the charge submitted.
Plaintiff submitted charges in this case that were less than the amount allowed pursuant to the permissive payment methodology (80% of 200% of the current Medicare B Fee Schedule). Plaintiff’s position is that the subject language required Geico to pay the full submitted amount. The Defendant’s position is that this case is about an amount of money damages due under a contract and, therefore, the declaratory action should be dismissed and Plaintiff should only be permitted to bring this case as a breach of contract.
While there may ultimately be a legitimate issue over the amount of money owed under a contract, the legal question in this case fits squarely within the four corners of Chapter 86, Declaratory Judgments. Said statute reads (in pertinent part):
86.011 Jurisdiction of the trial court. — 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. (emphasis added).
Further, Chapter 86 also reads:
86.021 Power to construe. — Any person claiming to be interested or who may be in doubt about his or her rights under a . . . contract . . . or whose rights, status, or other equitable or legal relations are affected by a . . . contract . . . may have determined any question of construction or validity arising under such . . . contract . . . or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder. (emphasis added).
A legal determination pursuant to Chapter 86.021 is exactly what the Plaintiff seeks in this case. While the judicial determination of this legal question may affect an amount of benefits owed, the narrow question before this Court merely seeks clarification of the Plaintiff’s rights under a contract.
Furthermore, there is nothing within the four corners of Chapter 86 that precludes a party from bringing a declaratory action merely because a cause of action could have been brought under another medium, such as a breach of contract. To the contrary, declaratory actions were created by the Legislature as a mechanism to avoid actions at common law, if possible. As noted by the Second District:
The goals of the Declaratory Judgment Act are to relieve litigants of the common law rule that a declaration of rights cannot be adjudicated unless a right has been violated and to render practical help in ending controversies which have not reached the stage where other legal relief is immediately available. Bell v. Associated Independents, Inc., 143 So.2d 904 (Fla. 2d DCA). To operate within this sphere of anticipatory and preventative justice, the Declaratory Judgment Act should be liberally construed. Bell. See Rigby v. Liles, 505 So.2d 598 (Fla. 1 DCA 1987). X Corp. v. Y Person , 622 So.2d 1098 (Fla. 2d 1993).
The Defendant’s argument has also been rejected when made by another PIP insurer in Plantation Spinal Care Center v. Direct General Ins. Co., 17-CV-61990 (S.D. Fla April 3, 2018)(“Plantation Spinal”)(“The Court rejects Defendant’s argument that Plaintiff cannot assert a claim for declaratory relief when an adequate alternative remedy exists at law.”). Although that case was applying Rule 57 of the Federal Rules of Civil Procedure, the same rationale comports with Chapter 86 of the Florida Statutes.
The Defendant argues that the Plaintiff did not comply with the condition precedent by sending a pre-suit demand letter pursuant to F.S. 627.736(10). Again, the Defendant conflates the requirements of an action brought as a breach of contract (a PIP suit seeking monetary damages) with a Declaratory Action brought under Chapter 86 of the Florida Statutes. There is simply no case law mandating that a pre-suit demand letter is a condition precedent to bringing a Declaratory Action; nor is there any such requirement within the four corners of Chapter 86. To the contrary, in Plantation Spinal, Direct General Insurance Company argued that the Plaintiff’s class action Declaratory Action failed to allege “compliance with the PIP statute’s pre-suit notice requirement” Plantation Spinal, at p. 8, which is exactly what GEICO argues in this case. The Court rejected that argument, stating:
As to the claims for declaratory and injunctive relief, the Court agrees with the reasoning and conclusion of the Florida Fourth District Court of Appeal that, as these claims do not seek damages, they do not constitute an action for benefits under the section and therefore the statutory notice requirement is not a condition precedent to these claims. Id., at 8-9, also citing, Bristol W. Ins. Co. v. MD Readers, Inc. 52 So.3d 48, 51 (Fla 4th DCA 2010) [35 Fla. L. Weekly D2832a] (emphasis added).
Thus, Plaintiff’s Declaratory Action is not predicated on compliance with a F.S. 627.736(10) pre-suit demand letter.
The Court also disagrees with Defendant’s argument that the Amended Declaration (“Declaration”) fails to allege with requisite specificity. While the Declaration may not allege every date of service where the Defendant allegedly miscalculated the reimbursement, such information is unnecessary for the Court to address the gravamen of Plaintiff’s claim, to wit: a judicial determination as to the rights and obligations of the parties based on the interpretation of contractual policy language. Indeed, GEICO does not allege that it fails to understand the issue raised by the Plaintiff. Therefore, Defendant’s argument regarding lack of specificity fails.
Relying on binding authority from the Florida Supreme Court as well as persuasive authority from the federal level (Plantation Spinal), and a recent order from a sister court on the identical issue with the identical parties (TLC Chiropractic, Inc. a/a/o Alphonzo Harris v. GEICO Indemnity Company, Fla. Leon Cty. Ct., 2018-CC-2960, Order of February 13, 2019, Judge Augustus Aikens [27 Fla. L. Weekly Supp. 59a]), this Court applies a straight reading of Chapter 86 and the Defendant’s Motion to Dismiss is DENIED.
