5 Fla. L. Weekly Supp. 845a
Declaratory judgments — Insurance — Personal injury protection — Declaratory action is appropriate for resolving questions of law even if arbitration will try disputed facts — Because issue raised by plaintiff concerning whether insurer can withdraw payment of PIP benefits based solely on paper review of medical records has already been settled in circuit, there is no disputed question of law and action for declaratory relief is inappropriate
CHIRO-MEDICAL CLINIC, INC., Plaintiff, vs. TIG PREMIER INSURANCE COMPANY, Defendant. County Court in and for Broward County. Case No. 97-10980-COCE-56. August 10, 1998. Robert W. Lee, Judge. Counsel: Charles J. Kane, Boca Raton, for Plaintiff. Adolfo Podrecca, Ft. Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO STRIKE AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
THIS CASE came before the Court on August 7, 1998 for hearing of the above referenced Motions, and the Court’s having heard argument of counsel, reviewed the Court’s file and relevant case law, and been otherwise advised in the premises, finds as follows:
The Plaintiff filed its single count Complaint on June 23, 1997 seeking payment of PIP benefits. On September 17, 1997, this Court abated “this case pending resolution of the pending arbitration.” On June 10, 1998, Plaintiff filed its Motion for Leave to File an Amended Complaint, seeking to add a count to this case for declaratory relief. In response, Defendant filed its Motion to Strike Plaintiff’s Motion, claiming that the pleading is a “sham” because this case has been abated.
The particular issue in Plaintiff’s Motion is whether Florida law permits an insurer to withdraw payment of PIP benefits based upon a paper review of medical records alone. This is a “pure question of law” which an arbitration panel cannot determine. The law is now settled in this Circuit that a declaratory action is appropriate on questions of law even if arbitration will try disputed facts. Falk v. Allstate Indemnity Company, Amended Order at 2, Appeal No. 97-16398(12) (Fla. 17th Cir. Ct. Apr. 13, 1998), a copy of which is attached hereto as Exhibit A. Accordingly, Plaintiff’s Motion is not a “sham.”
Nonetheless, the Court does not believe that Plaintiff’s Motion should be granted. The legal question Plaintiff seeks to have resolved in this case — whether an insurer can withdraw payment of PIP benefits upon a paper review of medical records alone — has already been settled in this Circuit. An insurer must “conduct a physical examination of the insured, rather than a `paper review’ of the insured’s medical records, before the insurer can properly terminate benefits.” Falk, supra at 4. See also Williams v. Fortune Ins. Co., 4 FLW Supp. 510 (17th Cir. Ct. Dec. 12, 1996). Accordingly, there is no disputed question of law. Because an action for declaratory relief requires uncertainty as to a party’s rights on a particular issue, an action for declaratory relief is inappropriate at this time. Accordingly, it is hereby
ORDERED AND ADJUDGED that both Motions are DENIED.
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EXHIBIT A
RONALD A. FALK, D.C. d/b/a POMPANO CHIROPRACTIC OFFICE, Appellant, vs. ALLSTATE INDEMNITY COMPANY, Appellee. 17th Judicial Circuit in and for Broward County. Appeal No. 97-16398(12). Case No. 97-10296 (56). April 13, 1998. John A. Miller, Judge. On appeal from the County Court in and for Broward County.
AMENDED ORDER
THIS CAUSE having come before the Court upon Appellant, RONALD A. FALK, D.C. d/b/a POMPANO CHIROPRACTIC OFFICE’S, appeal from a Motion to Dismiss granted in favor of Appellee, ALLSTATE INDEMNITY COMPANY, and Appellant’s Motion for Attorney’s Fees on Appeal, and the Court having read the briefs submitted by both parties, heard arguments of counsel, and being duly advised in the premises, hereby finds and decides as follows:
Appellant brought a declaratory action in County Court asking the court to determine whether, under §627.736(7), Florida Statutes, an insurer can withdraw payments of PIP benefits based upon a paper review of medical records alone. Appellee filed a motion to dismiss the declaratory claimant, alleging that, among other things, the court lacked jurisdiction because of the existence of an arbitration clause.
Appellant first claims that the trial court was in error in granting the motion to dismiss in that Appellee never introduced the policy containing the arbitration clause. Appellant is correct in pointing out that the trial court considering a motion to dismiss in favor of arbitration must determine whether a valid agreement exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. See Fortune Insurance Co. v. U.S.A. Diagnostics, Inc., 684 So.2d 208, 209 (Fla. 4th DCA 1996). According to Appellant, since the policy was never introduced the trial court could not properly determine whether an arbitrable issue existed. However, as Appellee points out, “[a]rbitration is mandatory pursuant to section 627.736(5) even in the event that the insurance policy between the insured and the insurance company does not include an arbitration provision with regard to the medical provider.” Orion Insurance Co. v. Magnetic Imaging Systems I, 696 So.2d 475 (Fla. 3rd DCA 1997). As such, Appellee’s failure to introduce a policy containing the arbitration provision, would not, in and of itself, preclude the lower court from granting a motion to dismiss. Appellant’s position that section 627.736(5) merely requires a provision within each policy offering arbitration as an option to dispute resolution is without merit. See Southeast Diagnostics Services v. State Farm Mut. Auto Ins. Co., 697 So.2d 988 (Fla. 4th DCA 1997); Orion Insurance Co. v. Magnetic Imaging Systems I, 696 So.2d 475 (Fla. 3rd DCA 1997).
Appellant next points out that a declaratory action seeking to interpret a statute or policy is appropriate notwithstanding a policy provision to arbitrate. The Court agrees. Although the Court understands that a declaratory action is not available to try disputed questions of fact as determinative issues, an action that seeks construction of rights under a statute, even though it may involve questions of fact, is proper for a declaratory action. See X Corp. v. Y Corp., 622 So.2d 1098 (Fla. 2nd DCA 1993); Fla. Stat. §86.021 (1997). The fact that another adequate remedy may exist, such as arbitration, does not preclude a judgment for declaratory relief. Fla. Stat. §86.111 (1997).
In the instant case, Appellant’s complaint for declaratory relief sought a determination as to whether §627.736(7) requires an insurer to conduct a physical examination as a prerequisite to cutting off benefits. Although this determination may necessarily involve questions of fact, those questions will not be determinative to the construction of §627.736(7). Therefore, the Court finds that a declaratory action was an appropriate action in this case, notwithstanding a policy provision to arbitrate.
Appellee argues that the order granting the motion to dismiss should be upheld regardless, because the complaint failed to state a cause of action. The lower court, however, granted the motion solely on the basis that it lacked jurisdiction to entertain the declaratory action. Since the trial court never ruled on this aspect of the motion, Appellee’s argument is without merit.
As this case must be sent back to the lower court for further proceedings, this Court finds it necessary to point out some facts concerning this matter of which the lower court may not be aware. It appears from an examination of court records that these exact same parties have already litigated the precise issue in this declaratory action in a previous declaratory action. In Falk v. Allstate Indemnity Co., No. 97-6849 COCE 51 (Broward August 25, 1997), the Appellant (Falk) filed a declaratory action against Appellee (Allstate) seeking a determination as to whether, under §627.736(7), an insurer could properly rely on a “paper review” of an insured’s medical records to withdraw PIP benefits. In that action, Judge Gary R. Cowart granted Appellant’s Motion for Summary Judgment citing as authority, Williams v. Fortune Ins. Co., 4 Fla. L. Weekly Supp. 510 (17th Jud. Cir. December 12, 1996). Williams holds that §627.736(7) requires an insurer to conduct a physical examination of the insured, rather than a “paper review” of the insured’s medical records, before the insurer can properly terminate benefits. As the lower court is aware, “[t]he decision of a circuit court in its appellate capacity is binding upon all county courts within that circuit.” State v. Lopez, 633 So.2d 1150 (Fla. 5th DCA 1994) (citations omitted).
If the decision of Judge Cowart was not brought to the attention of the lower court in this case, and it does not appear so from a review of the record, this Court is at a loss to understand why. The fact that this same issue has already been decided by way of a declaratory action between these two same parties may have been useful to the lower court in ruling on the motion to dismiss.
Appellant has also moved for “prevailing party” Attorney’s Fees pursuant to §627.428, Florida Statutes. However, the fact that Appellant has prevailed in this appeal seeking reversal of the motion to dismiss, does not make him the “prevailing party” in the litigation. Until Appellant prevails in the lower proceedings, he is not entitled to an award of attorney’s fees under the statute. See Allstate Ins. Co. v. De La Fe, 647 So.2d 965 (Fla. 3rd DCA 1994). Therefore, attorney’s fees incurred on this appeal may be granted only if Appellant ultimately prevails at the trial level. See Foley v. Fleet, 652 So.2d 962 (Fla. 4th DCA 1995).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Order granting Appellee’s Motion to Dismiss is REVERSED and the case is REMANDED to the trial court for further proceedings consistent herewith, and Appellant’s Motion for Attorney’s Fees is GRANTED only upon the condition that Appellant ultimately prevails in the lower proceedings.
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