8 Fla. L. Weekly Supp. 169a
Insurance — Personal injury protection — Civil procedure — In ruling on motion to dismiss, trial court is confined to allegations found within four corners of complaint — Trial court erred in conducting evidentiary hearing and treating matter as motion for summary judgment
DOROTHY STEWART, Appellant, v. ALLSTATE INS. CO., Appellee. Circuit Court, 19th Judicial Circuit (Appellate) in and for Indian River County. Case No. 99-0483-CA-25. L.T. Case No. 99-461-CC-10. Decision filed September 22, 2000. Appeal from County Court, Indian River County, David Morgan, Judge. Counsel: Julie H. Littky-Rubin, West Palm Beach, for Appellant. Paul McCaskill, Orlando, for Appellee.
(PER CURIAM.) Appellant, Dorothy Stewart, appeals from an order granting in part Appellee’s Motion to Dismiss and/or Compel Arbitration. Appellant was injured in two automobile accidents and sought treatment with George Fika, DC. Dr. Fika submitted bills for his charges to the Appellee, which reduced the charges and paid a lesser amount as to some of the bills, while denying payment altogether for other bills. As a result, the Appellant filed a PIP suit seeking recovery of the reduced and unpaid charges. In response, the Appellee filed a Motion to Dismiss and/or Compel Arbitration.
The court held an evidentiary hearing, at which the parties submitted into evidence insurance claim forms and forms titled “Direct Payment Authorization” which were signed by the Appellant and Dr. Fika. Following the hearing, the court entered an order which found that the Appellant had assigned her benefits to Dr. Fika as to the reduced charges but not as to the unpaid charges.
A motion to dismiss is customarily designed to test the legal sufficiency of a complaint to state a cause of action, not to determine issues of ultimate fact. It is not a substitute for a motion for summary judgment. In ruling on a motion to dismiss a complaint, the trial court is confined to the consideration of the allegations found within the four corners of the complaint. See Jallali v. Barry University Inc., 746 So.2d 583 (Fla. 3d DCA 1999); Holland v. Anheuser Busch, Inc. 643 So.2d 621 (Fla. 2d DCA 1994); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, PA, 704 So.2d 214 (Fla. 2d DCA 1998); Baycon Industries, Inc. v. Shea, 714 So.2d 1094 (Fla. 2d DCA 1998). The court therefore erred in holding an evidentiary hearing and treating the matter as a motion for summary judgment. While we recognize that the Appellant did not make this argument on appeal, we are unable to conclude that the error was harmless. Baycon.
Since the Appellee did not cross-appeal the denial of the Motion to Dismiss and/or Compel Arbitration as to the unpaid medical bills, we do not at this juncture address whether the court was correct in treating the reduced medical bills differently from the denied medical bills.
Finally, in light of the recent decisions in Nationwide Mutual Fire Insurance Co. v. Pinnacle Medical Inc., 753 So.2d 55 (Fla. 2000) and Livingston v. State Farm Mutual Automobile Ins. Co., 25 Fla. L. Weekly D533 (Fla. 2d DCA March 3, 2000), we instruct the court to issue separate orders on the Motion to Dismiss and the Motion to Compel Arbitration.
REVERSED and REMANDED. (HAWLEY, BRYAN, JJ. and MIDELIS, Acting Circuit Judge, concur.)
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