9 Fla. L. Weekly Supp. 465a
Insurance — Class actions — First count of complaint does not state cause of action for declaratory relief where it seeks to have court try disputed issues of material fact concerning appropriate mileage rate for transportation incurred in connection with medical treatment — Under doctrine of primary jurisdiction, court should refrain from exercising jurisdiction over issue until administrative agency with special competence has ruled on issue — Contradictory allegations within second count seeking damages renders that count insufficient on its face — Both counts dismissed with leave to amend second count
MARIO ESCOBAR, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. General Jurisdiction Division. Case No. 00-32403 CA-23. May 23, 2002. Amy Steele Donner, Judge. Counsel: Carlos Lidsky and Leo Bueno, Lidsky, Vaccaro & Montes, Hialeah. Valerie Itkoff, Akerman Senterfitt, Miami.
ORDER GRANTING MOTION TO DISMISS COUNTSI & II AND DENYING COUNT III OF DEFENDANT’SMOTION TO DISMISS THE CLASSREPRESENTATION COMPLAINT
THIS CAUSE, came on for hearing on June 5, 2001, on Defendant’s Motion to Dismiss the Class Representation Complaint, and the Court being duly advised in the premises, it is hereby
ORDERED AND ADJUDGED that said motion be and the same is hereby granted as to Counts I and II as follows:
Count INotwithstanding the liberal construction which courts may give the Declaratory Judgment Act, plaintiff has not stated a cause of action for declaratory relief where it asks the Court to try disputed issues of fact rather than construction of a definite stated right. Florida Statutes §627.736(1)(a), as interpreted in Hunter v. Allstate Insurance Co., 498 So.2d 514 (Fla.5th DCA 1986) permits State Farm to pay its insured’s automobile usage rate at 32.5 cents per mile. Hunter does not address at all the question of what mileage rate is appropriate; the case merely holds that the cost of transportation incurred in connection with reasonable and necessary medical treatment was a reimbursable medical benefit. In addition, “declaratory proceedings are appropriate when brought to determine contract interpretations, or the construction of rights or other relations, but are not a proper vehicle to try disputed questions of fact, as to determinative issues.” X Corp. v. Y Person, 622 So.2d 1098 (Fla.2d DCA 1993).
Furthermore, under the doctrine of primary jurisdiction, “when a party seeks to invoke the original jurisdiction of a trial court by asserting an issue which is beyond the ordinary experience of judges and juries, but within an administrative agency’s special competence, the court should refrain from exercising its jurisdiction over that issue until such time as the issue has been ruled upon by the agency.” Flo-Sun Inc. v. Kirk, 783 So.2d 1029, 1037 (Fla.2001).Count I is dismissed with prejudice.
Count II Count II of the Complaint seeks damages for breach of contract. In this count, plaintiff alleges it is entitled to damages because State Farm paid or offered to pay plaintiff for mileage at only 32.5 cents per mile. However, plaintiff’s allegation that it has been damaged is contradicted by its statement that State Farm “paid or offered to pay for the mileage.” Contradictory allegations within a single count neutralize each other and render the count insufficient on its fact. Peacock v. General Motors Acceptance Corp., 432 So.2d 142 (Fla. 1st DCA 1983). Count II is dismissed and plaintiff has 10 days in which to amend this Count.
Count IIIAs to Count III, said motion is denied.
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