4 Fla. L. Weekly Supp. 165a
Insurance — Personal injury protection — Motion to dismiss insured’s breach of contract claim against insurer on ground that dispute should be resolved through binding arbitration is denied — Statute providing for arbitration of disputes between insurer and any person providing medical services or supplies does not apply to dispute between insured and insurer — Insurer failed to prove existence of any assignment of PIP benefits from insured to health care providers — Motion to dismiss claim for declaratory relief on issue of whether policy provides PIP coverage for chiropractic treatment is denied
SHERYL ROSS, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. In the County Court in and for Duval County. Division C. Case No. 95-11964 CC. May 31, 1996. Jean M. Johnson, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came before the Court upon defendant USAA CASUALTY INSURANCE COMPANY’s Motion to Dismiss in response to plaintiff, SHERYL ROSS’ Complaint. The plaintiff’s complaint alleged two counts, with Count I seeking a recovery of PIP benefits and Count II seeking declaratory relief.
The motion was heard by the Court on Thursday, April 11, 1996, and present on behalf of the plaintiff was Jeffrey R. Bankston of Buschman, Ahern, Persons & Bankston, and present on behalf of defendant was Joseph L. Vaughn, Jr., Boyd & Jenerette.
Plaintiff’s complaint contained two counts relating to personal injury protection benefits pursuant to a policy of insurance issued to plaintiff by defendant. In Count I, plaintiff filed a claim for breach of contract alleging that defendant had failed to pay certain personal injury protection benefits. In Count II, plaintiff filed a claim for declaratory relief relating to defendant’s alleged failure to pay certain PIP benefits. Defendant filed a Motion to Dismiss alleging that the complaint failed to state a cause of action upon which relief could be granted, contending that Count I should be dismissed and that binding arbitration should be compelled between defendant and plaintiff’s medical providers, and that Count II should be dismissed because a claim for declaratory relief relating to PIP benefits is not proper.
With respect to Count I, defendant asserted to the Court that §627.736(5), Florida Statutes, controlled all claims disputes over medical benefits arising between the insurer and any person providing medical services or supplies. Pursuant to such statutory section, defendant asserted that if any person providing medical services or supplies has agreed to accept assignment of personal injury protection benefits, then the provisions of Chapter 682, Florida Statutes, relating to arbitration, shall apply. Further, the defendant, as set forth in its Motion to Dismiss, asserted to the Court that the underlying USAA insurance policy did contain provisions in accordance with the requirements of §627.736(5), Florida Statutes and that such provision was controlling with respect to the present action.
In addition to the foregoing, defendant presented case law for the Court’s review which in essence stood for the proposition that arbitration is a favored means of dispute resolution under Florida law.
Lastly, defendant argued that a purported “Reassignment of PIP benefits,”, was not effective in relation to the arbitration clause contained in the insurance policy because the purported Reassignment was executed after the arbitrable issue arose. The attempted Reassignment was an improper attempt to circumvent the arbitration clause under the contract and was executed after the medical providers initially sought to benefit from the initial assignment of benefits.
In response to defendant’s Motion to Dismiss, the plaintiff asserted that the plain language of §627.736(5), Florida Statutes is unequivocal. The plaintiff asserted that she was not a “person providing medical services or supplies” as set forth under §627.736(5), Florida Statutes, and because of the plain language of the statute, it had no application to the case at bar. Further, the plaintiff asserted that the defendant has failed to prove the existence of an “assignment” of any PIP benefits from the plaintiff to health care providers.
In further support of the plaintiff’s position, the plaintiff offered for review the plaintiff’s Notice of Filing of Reassignment of PIP Benefits by Health Care Providers to Sheryl Ross (“Reassignment”). The Reassignment, which was before the Court, was in essence a reassignment of PIP benefits by Davenport Chiropractic and/or John A. Davenport, D.C. to the plaintiff, Sheryl Ross.
Finally, plaintiff presented for review the case of Gonnella v. State Farm Mutual Automobile Insurance Company, Circuit Court, Osceola County, No. AP95-0006, which was an opinion issued by Circuit Court Judge Ted Coleman on or about February 14, 1996. In Gonnella, State Farm sought to have the plaintiff’s PIP action dismissed pursuant to §627.736(5), Florida Statutes. Apparently, a medical service provider had initially accepted an assignment of PIP benefits, but shortly thereafter, the assignment was revoked. The Gonnella court held that the plaintiff, after the original assignment was revoked, was then in the same position prior to the original assignment of any PIP benefits to the health care provider. Accordingly, the Gonnella court held that §627.736(5), Florida Statutes had no application. Even though this Court is not bound by the Gonnella case, the Court does find Gonnella persuasive.
COUNT II
As to Count II of the complaint, defendant contends that Count II is a claim for nothing more then payment of PIP benefits and that a claim for declaratory relief relating to PIP benefits is not proper. Cruz v. Union General Insurance, 586 So.2d 91 (Fla. 3rd DCA 1991). In Cruz, an insured sued its insurer for declaratory relief and breach of contract relating to PIP benefits. The trial court dismissed the count for declaratory relief because the insured had a right to be compensated only for benefits that had already accrued which requires a purely factual determination of whether medical expenses were “reasonable, related, or necessary.” The Third District Court of Appeal held that the trial court was correct in dismissing the action for declaratory relief because questions of fact alone will not support a declaratory relief action. The proper avenue of redress is an action for breach of contract.
In response, the plaintiff read verbatim various statutes contained in Chapter 86, Florida Statutes. Chapter 86, Florida Statutes, is entitled “Declaratory Judgments.” Specifically, the plaintiff asserted that pursuant to §86.011, Florida Statutes, the Court may render declaratory judgments on the existence or non-existence of any fact upon which the existence or non-existence of any right does or may depend, and whether such right now exists or will arise in the future. Additionally, plaintiff cited Trawick’s Florida Practice and Procedure, 1995 edition, Chapter 35, on the subject of declaratory judgments. Trawick’s states that a person claiming to be interested in or who may be in doubt about his or her rights under a written instrument may seek a declaratory judgment.
Finally, the plaintiff asserted that the six requisites for declaratory relief are: (i) a bona fide, actual, present and practical need for the declaration, (ii) a present ascertained or ascertainable state of facts or a present controversy about a state of facts, (iii) a power, privilege, immunity or right of the party seeking relief must be dependent on the facts or the law applicable to the facts, (iv) another person or persons must have an actual, present and adverse interest in the subject matter, (v) the adverse interest must be before the court, and (vi) the declaration must not be merely giving legal advice.
In response to both the plaintiff and defendant’s assertions under Count II of the Motion to Dismiss, the Court inquired of the parties as to the exact issue sought for determination under the declaratory judgment count. The plaintiff responded by stating the issue under Count II should be: “Does the underlying USAA insurance policy provide personal injury protection coverage to the plaintiff, Sheryl Ross, for chiropractic treatment, when the plaintiff presents for health care treatment as a result of the underlying automobile collision?”
WHEREFORE, with the Court having heard argument of counsel, and having reviewed the relevant case and statutory law, and being otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. Defendant’s Motion to Dismiss Count I of plaintiff’s complaint is DENIED. This Court finds persuasive the case of Gonnella v. State Farm Mutual Automobile Insurance Company.
2. Defendant’s Motion to Dismiss Count II of plaintiff’s complaint is DENIED. The Court finds that the plaintiff is requesting a judicial declaration on the existence or non-existence of a fact upon which a right of the plaintiff does or may depend, and whether such right now exists or will arise in the future. In accordance with the assertions made to the Court by respective counsel at the hearing, the Court frames the issue for Count II of plaintiff’s complaint as follows:
Does the underlying USAA insurance policy provide PIP coverage to the plaintiff, SHERYL ROSS, for chiropractic treatment, when the plaintiff presents for health care treatment as a result of the underlying automobile collision.
3. Defendant shall have twenty days from the date of entry of this Order within which to file a response to plaintiff’s complaint.
* * *
