Preview
Filing # 150099967 E-Filed 05/23/2022 12:32:13 PM
IN THE COUNTY COURT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CDM CHIROS, LLC D/B/A NEW TAMPA
CHIROPRACTIC AND INJURY CENTER
A/A/O RYAN DAVIE,
Plaintiff,
CASE NO: 2022-008754-SP-25 (02)
vs. CIVIL DIVISION
PROGRESSIVE AMERICAN
INSURANCE COMPANY,
Defendant.
___________________________________/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Defendant, Defendant, PROGRESSIVE AMERICAN INSURANCE
COMPANY, by and through undersigned counsel, hereby files its Answer and Affirmative
Defenses to Count I of Plaintiff’s Complaint and Motion to Dismiss Count II of Plaintiff’s
Complaint, and would state as follows:
1. Admitted for jurisdictional purposes only. Any and all other allegations or
inferences of liability therefrom are specifically denied and Defendant demands strict proof
thereof.
2. Denied as framed. Demand strict proof thereof.
3. Admit that Defendant is authorized and sells automobile insurance in the State of
Florida, and maintains offices in Florida. Any and all other allegations or inferences of liability
therefrom are specifically denied and Defendant demands strict proof thereof.
4. Denied as framed.
5. Without knowledge; therefore denied.
6. Without knowledge; therefore denied.
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7. Denied as framed. Demand strict proof thereof.
8. Denied as framed. Demand strict proof thereof.
9. Admit that Defendant issued a policy of insurance to the named insured which was
in full force and effect on the alleged date of loss, subject to all the terms and conditions of the
policy. The policy speaks for itself. Any and all other allegations or inferences of liability
therefrom are specifically denied and Defendant demands strict proof thereof.
10. Admit that Defendant issued a policy of insurance to the named insured which was
in full force and effect on the alleged date of loss, subject to all the terms and conditions of the
policy. The policy speaks for itself. Any and all other allegations or inferences of liability
therefrom are specifically denied and Defendant demands strict proof thereof.
11. Denied. Demand strict proof thereof.
12. Denied. Demand strict proof thereof.
13. Denied. Demand strict proof thereof.
14. Denied. Demand strict proof thereof.
15. Denied. Demand strict proof thereof.
COUNT I: BREACH OF CONTRACT
16. Defendant re-alleges its responses to paragraphs 1-15 and specifically denies any
and all allegations not specifically admitted therein.
17. Denied. Demand strict proof thereof.
18. Denied. Demand strict proof thereof.
19. Denied. Demand strict proof thereof.
20. Denied. Demand strict proof thereof.
21. Denied. Demand strict proof thereof.
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All allegations in the wherefore clause(s) are hereby denied.
Any and all allegations not specifically admitted herein are hereby denied.
AFFIRMATIVE DEFENSES AS TO COUNT I
1. Any liability of Defendant to the Plaintiff is subject to the terms, conditions,
limitations, endorsements, exclusions and effective dates of any applicable insurance agreement.
2. Any liability of Defendant to the Plaintiff is subject to the terms, conditions and
limitations of the Florida Motor Vehicle No-Fault Law.
3. Defendant has paid all benefits reasonably due under any contract of insurance, the
Florida Motor Vehicle No-Fault Law, and all applicable Florida law. The dates of service
submitted to the Defendant were paid at 80% of the reasonable charges, in accordance with the
applicable policy of insurance and the schedule of maximum charges as set forth in Florida Statutes
s. 627.736(5)(a)1-5.
4. The amount at issue in this matter is so minimal that the matter should be dismissed
based upon the legal doctrine of de minimis non curat lex. By litigating the amount at issue, the
parties are going to be subjected to costs that far exceed the amount in dispute, which was a concern
of the Florida Supreme Court in Blackshear. A lawsuit over such a small amount will also take
away valuable resources from the Court that could be put to better use. Thus, Defendant is entitled
to summary final judgment as a matter of law.
5. Defendant is entitled to a setoff as to the amount of any judgment in favor of
Plaintiff to the extent that Plaintiff owes Defendant reimbursement for bills unlawfully, wrongfully
and improperly submitted to Defendant and paid by Defendant, or to the extent that Defendant
overpaid for any service allegedly rendered or overpaid interest, penalty, and/or postage.
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6. Plaintiff failed to serve a valid pre-suit demand letter pursuant to Fla. Stat.
627.736(10). Plaintiff is precluded from asserting this action for the underlying benefits.
7. Defendant reserves the right to amend its affirmative defenses.
MOTION TO DISMISS COUNT II – PETITION FOR DECLARATORY RELIEF
AND INCORPORATED MEMORANDUM OF LAW
Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY
(“PROGRESSIVE”), by and through the undersigned counsel, hereby files this Motion to Dismiss
Plaintiff’s Petition for Declaratory Relief and Incorporated Memorandum of Law. Defendant
states as follows:
PROCEDURAL AND FACTUAL HISTORY
1. On April 6, 2022, Petitioner filed its Complaint against PROGRESSIVE regarding
an alleged dispute over Personal Injury Protection benefits.
2. Petitioner’s Complaint contains two counts. Count I is an action for Breach of
Contract. Alternatively, Count II is a Petition for Declaratory Relief.
3. Count II of the Complaint incorporates Paragraphs 1-21 (seeking monetary relief,
fees, costs and interest) (Paragraph 22, Complaint)
4. Defendant is moving to dismiss Count II as it fails to state a cause of action.
MEMORANDUM OF LAW
Count II of the Complaint fails to set forth a short and plain statement of the ultimate facts
showing that the Petitioner is entitled to relief. More importantly, there is no controversary or
dispute regarding the allegations contained in Count II. It is axiomatic that in order to obtain
declaratory judgment, a party must demonstrate that: there is a bona fide, actual present practical
need for the declaration; that the declaration should deal with a present ascertained or ascertainable
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state of facts or present controversy as to a state of facts; that some immunity, power or privilege
or right of the complaining party is dependent upon the facts or the law applicable to the facts; that
there is some person or persons who have, or reasonably may have an actual, present, adverse and
antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse
interest are all before the court by proper process or class representation and that the relief sought
is not merely the giving of legal advice by the courts or the answer to questions propounded from
curiosity. Jackson v. Federal Ins. Co., 643 So. 2d 56, 58 (Fla. 4th DCA 1994).
The test for the sufficiency of a complaint for declaratory judgment is not whether the
Plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether Plaintiff
is entitled to a declaration of rights at all. Platt v. General Dev. Corp., 122 So. 2d 48 (Fla. 2d DCA
1960), cert. dismissed, 129 So. 2d 143 (Fla. 1961); Fla. Stat. §86.021; Colby v. Colby, 120 So.2d
797 (Fla. 2d DCA 1960). The purpose of statutes affording declaratory judgment is to adjudicate
the rights of parties who have not otherwise had those rights determined. (emphasis added)
Colby at 800. Thus, in order to activate jurisdiction, the party seeking a declaration must
demonstrate that he/she is in doubt as to the existence or nonexistence of some right, status,
immunity, power, or privilege, and that he is entitled to have such doubt removed. Flagship Real
Estate Corp. v. Flagship Banks, Inc., 374 So. 2d 1020 (Fla. 2d DCA 1979). In this regard, Plaintiff
must demonstrate a bona fide, actual, present, and practical need for the declaration. Platt, 122 So.
2d at 50, citing May v. Holley, 59 So. 2d 636 (Fla. 1952).
Petitioner contends that it needs the court to interpret the rights, obligations and exclusions
contained in an automobile insurance policy application and Fla. Stat. §627.736. (¶23). Petitioner
attempts to clarify the relief it is seeking by stating it needs a decision as to whether Progressive
improperly utilized the Medicare Payment files as opposed to following the Medicare Part B
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formula for reimbursement. (¶22). Yet there is no specific reference to the Progressive policy that
was issued in this case. More importantly, the attempt at clarifying the issue fails to demonstrate
any of the required elements to obtain declaratory relief.
Petitioner’s Complaint is based upon an assumption. Petitioner specifically states in
Paragraph 24 that, “If Defendant’s policy of insurance incorporates the schedule of maximum
charges (SOMC), then the policy requires the Defendant to utilize the Medicare formula when
determining the allowable amounts for each CPT code billed.” There is no specific reference to
any portion of policy issued by Defendant in this case. At best, Petitioner’s contention about the
contents of the policy is speculation. Speculation does not satisfy an actual need for a declaration.
Petitioner then makes a blanket statement that “it is clear” based on Defendant’s
explanation of benefits that it intended to reimburse the codes pursuant to Fla. Stat. §627.736(5)
and calculate the allowable amount. By Petitioner’s own admission, as discussed below,
Defendant’s reimbursement to Plaintiff comports with Fla. Stat. §627.736(5). And while
Plaintiff’s reiteration of the Medicare formula for calculating CPT codes is plainly stated and
objective, Plaintiff improperly suggests that Defendant purposefully altered or “applied” a
reduction to this formula in the process of calculating its payments to Plaintiff. (¶¶26 and 27). On
the contrary, as Plaintiff correctly points out, and as the referenced explanation of benefits
demonstrate, Defendant intended to pay Plaintiff’s reimbursable charges based on either 80% of
200% of the Participating Level of Medicare Part B fee schedule or 200% of the 2007 Limiting
Charge of Medicare physician fee schedule, as provided under Florida Statute 627.736(5) and
Priority Med. Ctrs. v. Allstate Ins. Co., 319 So. 3d 724 (Fla. 3d DCA 2021).
Plaintiff’s reliance on Sunrise Chiropractic & Rehab. Ctr. v. Sec. Nat'l Ins. Co., 321 So.
3d 786, 788-89 (Fla. 4th DCA 2021) to argue that Defendant impermissibly “applied” a budget
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neutrality adjuster when calculating reimbursement pursuant to the 2007 Medicare Part B fee
schedule is both misinformed and misleading. (¶¶28 and 29). Plaintiff points out, without any
specific case citation, that the court in Sunrise “found the insurer's 2 percent reduction improper
because the reduction ran afoul of the integrity of the fee schedule.” (¶29). The court also found
that the insurer’s reliance on the CMS Payment Files to reduce chiropractic codes by 2% was improper
because its contrary to the federal government’s stated point of applying the reduction to the payment
files rather than the RVU’s so as to preserve their integrity. Sunrise Chiropractic & Rehab. Ctr. v.
Sec. Nat'l Ins. Co., 321 So. 3d 786, 790 (Fla. 4th DCA 2021). What Plaintiff fails to acknowledge
is that unlike the so-called 2% reduction issue in Sunrise, wherein the 2% reduction was reflected
only in the CMS payment files, the budget neutrality adjustor is incorporated into the Medicare
Part B formula for 2007, which Plaintiff does not include alongside the bold typed formula in ¶26.
Therefore, Plaintiff is improperly conflating a payment files-based method of reducing CPT code
payments with the very method upon which Plaintiff is arguing is the correct payment formula.
The absurdity of Plaintiff’s simultaneous reliance upon and repudiation of the Medicare
Part B formula is reflected in ¶30, wherein Plaintiff alleges that “when the Defendant determined
the allowable amount for the service year was higher than the allowable amount of the applicable
fee schedule for 2007, the Defendant impermissibly applied the Budget Neutrality Adjustor to the
Conversion Factor within the Medicare Part B formula.” What Plaintiff apparently doesn’t realize,
or at least fails to acknowledge, is that the budget neutrality adjustor is already included in the
conversion factor of the formula under such circumstances. Thus, Plaintiff’s allegation that
Defendant “impermissibly applied the Budget Neutrality Adjustor to the Conversion Factor within
the Medicare Part B formula” leads us to the absurd conclusion that for every CPT code that is
reimbursable based on the service year, an insurer must dissect from the conversion factor the
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exact Budget Neutrality Adjustor amount. Which is a proposition that neither the PIP statute nor
even Plaintiff, in its reiteration of the formula in ¶26, contemplates.
There simply is no present need for a declaration. “[D]eclaratory relief generally is not
appropriate where the alleged controversy is moot.” Rhea v. Dist. Bd. of Trustees of Santa Fe Coll.,
109 So. 3d 851, 859 (Fla. 1st DCA 2013). A declaration under Chapter 86 must serve “some
useful purpose.” Kendrick v. Everheart, 390 So. 2d 53, 59 (Fla. 1980). Indeed, “declaratory relief
generally is not appropriate where the alleged controversy is moot.” Rhea v. Dist. Bd. of Trustees
of Santa Fe Coll., 109 So. 3d 851, 859 (Fla. 1st DCA 2013); see also Godwin v. State, 593 So. 2d
211, 212 (Fla. 1992) (“An issue is moot when the controversy has been so fully resolved that a
judicial determination can have no actual effect.”). In this case, the law is well settled that
Progressive follow the statute in applying the schedule of maximum charges. There is no law or
case that forbids Progressive from relying on the Medicare Fee Schedule. As such, Petitioner’s
claim for declaratory relief is improper as its claim is moot.
Additionally, in the instant case, the Petitioner does not have standing to maintain this cause
of action as it does not have a right to pursue a Declaratory Action based on the Assignment of
Benefits. It is undisputed that the Petitioner is not a party to the original contract, but rather asserts
standing based on the purported assignment of benefits attached (or alleged to exist) as an Exhibit
to its Petition for Declaratory Relief, incorporated herinafter by reference. This assignment does
not provide for a private right of action to bring the subject Petition for Declaratory Relief; it only
provides Petitioner the right to file suit “for the payment of benefits due.” It also explicity states,
that the assignment is not intended to assign any other caused of action, except for the collect of
PIP benefits. It is clear based on this Assignment of Benefits, Petitioner only has a right to bring
a suit for the payment of PIP benefits. As discussed above, Petitioner no longer has that ability to
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ever recover additional payment of PIP benefits here for the subject charges. Since Petitioner’s
standing rests solely on its assignment of benefits, and its assignment of benefit’s validity hinges
on filing suit for the payment of PIP benefits, Petitioner does not have standing here.
An assignment is defined as: "a transfer or setting over of property, or of some right or
interest therein, from one person to another; the term denoting not only the act of transfer, but also
the instrument by which it is effected." Black's Law Dictionary (71h ed. 1999). In Florida, the black
letter rule of assignment creation is: "Any instruction, document or act that vests in one party the
right to receive funds arguably due to another party operates as an equitable assignment." See
McClure v. Century Estates, Inc. 96 Fla. 568, 120 So. 4 (Fla. 1928). It is well settled Florida law
that under Progressive Express Insurance Company v. McGrath Community Chiropractic:
"The assignment of personal injury protection (PIP) benefits is not merely a condition precedent
to maintain an action on a claim held by the person or entity who filed the lawsuit; rather, it is the
basis of the claimant's standing to invoke the processes of the court in the first place." Progressive
Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281. The
Progressive case makes it clear that once it has been proven that an assignment is invalid the case
must be dismissed for lack of standing.
Furthermore, the Court in MacNeil v. Crestview Hospital Corporation affirmed the lower
court’s decision when it dismissed a declaratory action with prejudice, reasoning that the PIP
statute does not create a private cause of action for an insured to challenge the reasonableness of a
health care provider's charges, and therefore any declaration would amount to an improper
advisory opinion. 292 So.3d 840 (1st DCA 2020). The court also upheld the lower court’s decision
that a declaratory judgment action is unavailable to [Petitioner] because the PIP statute lacks an
express or implied private cause of action to enforce its provisions, rendering any declaratory
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judgment an improper “advisory opinion.” Id. For these very reasons, Petitioner lacks standing to
bring this instant action for Declaratory Relief.
Therefore, Plaintiff’s Complaint fails to state a cause of action for which relief may be
granted, as Plaintiff cannot show that there is a bona fide, actual, and present need for said
declaration, or that the Plaintiff is unsure of some power, immunity, or privilege, and should be
dismissed as a matter of law. The mere conclusory allegations contained in Plaintiff’s Complaint
are simply inadequate to state a cause of action for declaratory relief. Florida Statutes, Chapter
86, pertaining to declaratory judgment actions, states that the goal of the Act is 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.” See State Department of Education v. Glasser,
622 So.2d 1003, 1006 (Fla. 2nd DCA 1992). The Florida Supreme Court has determined that a
bona fide, present need for declaration which considers the present, ascertainable facts and an
existing right of privilege would test to determine whether an issue or case is ripe for declaratory
judgment action. See Santa Rosa Count v. Administration Com’n Division of Administrative
Hearings, 661 So.2d 1190, 1992-93 (Fla. 1995).
Declaratory relief is not available to settle factual issues upon which coverage issues turn
under an insurance contract which is clear and unambiguous, as such instances present no need for
contract, construction or interpretation. See Travelers Insurance Company v. Emery, 579 So.2d
798, 801 (Fla. 1st DCA 1991). The Third District in the case of Swaine v. Reliable Insurance
Company, 200 So.2d 862, 863 (Fla. 3rd DCA 1967), addressed the issue of mere conclusory
allegations that a Plaintiff is “in doubt” concerning contractual rights or liabilities is inadequate.
In Swaine, the Plaintiff sued his insurance company for failing to defend and indemnify him with
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regard to a civil action brought by a third party. The Plaintiff alleged in her complaint that she
was “in doubt” concerning her rights under the policy but failed to allege facts which reflected
doubt as to the “meaning, interpretation or applicability of the policy or the coverage thereunder”.
The action presented was not one for declaratory relief, the Swaine Court reasoned, because the
underlying action was really nothing more than an action for breach of contract. In the present
action, the Plaintiff has alleged that it is “in doubt” concerning its rights of recovery on the
insurance policy involved in this claim. However, a close reading of the Complaint reveals that
there is no actual need or doubt which exists. The Plaintiff’s filing of the declaratory judgment in
light of and in the face of the abovementioned case law is without merit. As such, Plaintiff’s
Petition for Declaratory Relief should be dismissed/stricken.
DEMAND FOR TRIAL BY JURY
Defendant demands trial by jury of all issues so triable.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
furnished via E-Mail on May 23, 2022 to Matthew C. Barber, Esquire, Daly & Barber, P.A.,
Attorney for Plaintiff, CDM Chiros, LLC d/b/a New Tampa Chiropractic And Injury Center a/a/o
Ryan Davie, PIPPortalLaw@gmail.com, (954) 741-2000/(954) 337-4642 (F) and John C. Daly,
Esquire, Daly & Barber, P.A., Attorney for Plaintiff, CDM Chiros, LLC d/b/a New Tampa
Chiropractic And Injury Center a/a/o Ryan Davie, PIPPortalLaw@gmail.com, (954) 741-
2000/(954) 337-4642 (F).
Progressive PIP House Counsel
Attorneys for Defendant
9675 NW 117 Avenue
Suite 200
Medley, FL 33178
(954) 903-6639 (Asst.)/(954) 903-6622 (Direct)
Fax: (305) 887-2781
SERVICE DESIGNATIONS:
Primary: SFPIPHC@Progressive.com
Secondary: DAYNA_J_BROWNE@progressive.com
By: /s/Dayna J Browne, Esq.
DAYNA J. BROWNE, ESQUIRE
Florida Bar No. 58195
“Salaried Employees of Progressive Casualty Insurance Company”
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Preview
Filing # 150099967 E-Filed 05/23/2022 12:32:13 PM IN THE COUNTY COURT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CDM CHIROS, LLC D/B/A NEW TAMPA CHIROPRACTIC AND INJURY CENTER A/A/O RYAN DAVIE, Plaintiff, CASE NO: 2022-008754-SP-25 (02) vs. CIVIL DIVISION PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. ___________________________________/ DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, by and through undersigned counsel, hereby files its Answer and Affirmative Defenses to Count I of Plaintiff’s Complaint and Motion to Dismiss Count II of Plaintiff’s Complaint, and would state as follows: 1. Admitted for jurisdictional purposes only. Any and all other allegations or inferences of liability therefrom are specifically denied and Defendant demands strict proof thereof. 2. Denied as framed. Demand strict proof thereof. 3. Admit that Defendant is authorized and sells automobile insurance in the State of Florida, and maintains offices in Florida. Any and all other allegations or inferences of liability therefrom are specifically denied and Defendant demands strict proof thereof. 4. Denied as framed. 5. Without knowledge; therefore denied. 6. Without knowledge; therefore denied. 212724109 CASE NO: 2022-008754-SP-25 (02) 7. Denied as framed. Demand strict proof thereof. 8. Denied as framed. Demand strict proof thereof. 9. Admit that Defendant issued a policy of insurance to the named insured which was in full force and effect on the alleged date of loss, subject to all the terms and conditions of the policy. The policy speaks for itself. Any and all other allegations or inferences of liability therefrom are specifically denied and Defendant demands strict proof thereof. 10. Admit that Defendant issued a policy of insurance to the named insured which was in full force and effect on the alleged date of loss, subject to all the terms and conditions of the policy. The policy speaks for itself. Any and all other allegations or inferences of liability therefrom are specifically denied and Defendant demands strict proof thereof. 11. Denied. Demand strict proof thereof. 12. Denied. Demand strict proof thereof. 13. Denied. Demand strict proof thereof. 14. Denied. Demand strict proof thereof. 15. Denied. Demand strict proof thereof. COUNT I: BREACH OF CONTRACT 16. Defendant re-alleges its responses to paragraphs 1-15 and specifically denies any and all allegations not specifically admitted therein. 17. Denied. Demand strict proof thereof. 18. Denied. Demand strict proof thereof. 19. Denied. Demand strict proof thereof. 20. Denied. Demand strict proof thereof. 21. Denied. Demand strict proof thereof. 2 212724109 CASE NO: 2022-008754-SP-25 (02) All allegations in the wherefore clause(s) are hereby denied. Any and all allegations not specifically admitted herein are hereby denied. AFFIRMATIVE DEFENSES AS TO COUNT I 1. Any liability of Defendant to the Plaintiff is subject to the terms, conditions, limitations, endorsements, exclusions and effective dates of any applicable insurance agreement. 2. Any liability of Defendant to the Plaintiff is subject to the terms, conditions and limitations of the Florida Motor Vehicle No-Fault Law. 3. Defendant has paid all benefits reasonably due under any contract of insurance, the Florida Motor Vehicle No-Fault Law, and all applicable Florida law. The dates of service submitted to the Defendant were paid at 80% of the reasonable charges, in accordance with the applicable policy of insurance and the schedule of maximum charges as set forth in Florida Statutes s. 627.736(5)(a)1-5. 4. The amount at issue in this matter is so minimal that the matter should be dismissed based upon the legal doctrine of de minimis non curat lex. By litigating the amount at issue, the parties are going to be subjected to costs that far exceed the amount in dispute, which was a concern of the Florida Supreme Court in Blackshear. A lawsuit over such a small amount will also take away valuable resources from the Court that could be put to better use. Thus, Defendant is entitled to summary final judgment as a matter of law. 5. Defendant is entitled to a setoff as to the amount of any judgment in favor of Plaintiff to the extent that Plaintiff owes Defendant reimbursement for bills unlawfully, wrongfully and improperly submitted to Defendant and paid by Defendant, or to the extent that Defendant overpaid for any service allegedly rendered or overpaid interest, penalty, and/or postage. 3 212724109 CASE NO: 2022-008754-SP-25 (02) 6. Plaintiff failed to serve a valid pre-suit demand letter pursuant to Fla. Stat. 627.736(10). Plaintiff is precluded from asserting this action for the underlying benefits. 7. Defendant reserves the right to amend its affirmative defenses. MOTION TO DISMISS COUNT II – PETITION FOR DECLARATORY RELIEF AND INCORPORATED MEMORANDUM OF LAW Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY (“PROGRESSIVE”), by and through the undersigned counsel, hereby files this Motion to Dismiss Plaintiff’s Petition for Declaratory Relief and Incorporated Memorandum of Law. Defendant states as follows: PROCEDURAL AND FACTUAL HISTORY 1. On April 6, 2022, Petitioner filed its Complaint against PROGRESSIVE regarding an alleged dispute over Personal Injury Protection benefits. 2. Petitioner’s Complaint contains two counts. Count I is an action for Breach of Contract. Alternatively, Count II is a Petition for Declaratory Relief. 3. Count II of the Complaint incorporates Paragraphs 1-21 (seeking monetary relief, fees, costs and interest) (Paragraph 22, Complaint) 4. Defendant is moving to dismiss Count II as it fails to state a cause of action. MEMORANDUM OF LAW Count II of the Complaint fails to set forth a short and plain statement of the ultimate facts showing that the Petitioner is entitled to relief. More importantly, there is no controversary or dispute regarding the allegations contained in Count II. It is axiomatic that in order to obtain declaratory judgment, a party must demonstrate that: there is a bona fide, actual present practical need for the declaration; that the declaration should deal with a present ascertained or ascertainable 4 212724109 CASE NO: 2022-008754-SP-25 (02) state of facts or present controversy as to a state of facts; that some immunity, power or privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. Jackson v. Federal Ins. Co., 643 So. 2d 56, 58 (Fla. 4th DCA 1994). The test for the sufficiency of a complaint for declaratory judgment is not whether the Plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether Plaintiff is entitled to a declaration of rights at all. Platt v. General Dev. Corp., 122 So. 2d 48 (Fla. 2d DCA 1960), cert. dismissed, 129 So. 2d 143 (Fla. 1961); Fla. Stat. §86.021; Colby v. Colby, 120 So.2d 797 (Fla. 2d DCA 1960). The purpose of statutes affording declaratory judgment is to adjudicate the rights of parties who have not otherwise had those rights determined. (emphasis added) Colby at 800. Thus, in order to activate jurisdiction, the party seeking a declaration must demonstrate that he/she is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege, and that he is entitled to have such doubt removed. Flagship Real Estate Corp. v. Flagship Banks, Inc., 374 So. 2d 1020 (Fla. 2d DCA 1979). In this regard, Plaintiff must demonstrate a bona fide, actual, present, and practical need for the declaration. Platt, 122 So. 2d at 50, citing May v. Holley, 59 So. 2d 636 (Fla. 1952). Petitioner contends that it needs the court to interpret the rights, obligations and exclusions contained in an automobile insurance policy application and Fla. Stat. §627.736. (¶23). Petitioner attempts to clarify the relief it is seeking by stating it needs a decision as to whether Progressive improperly utilized the Medicare Payment files as opposed to following the Medicare Part B 5 212724109 CASE NO: 2022-008754-SP-25 (02) formula for reimbursement. (¶22). Yet there is no specific reference to the Progressive policy that was issued in this case. More importantly, the attempt at clarifying the issue fails to demonstrate any of the required elements to obtain declaratory relief. Petitioner’s Complaint is based upon an assumption. Petitioner specifically states in Paragraph 24 that, “If Defendant’s policy of insurance incorporates the schedule of maximum charges (SOMC), then the policy requires the Defendant to utilize the Medicare formula when determining the allowable amounts for each CPT code billed.” There is no specific reference to any portion of policy issued by Defendant in this case. At best, Petitioner’s contention about the contents of the policy is speculation. Speculation does not satisfy an actual need for a declaration. Petitioner then makes a blanket statement that “it is clear” based on Defendant’s explanation of benefits that it intended to reimburse the codes pursuant to Fla. Stat. §627.736(5) and calculate the allowable amount. By Petitioner’s own admission, as discussed below, Defendant’s reimbursement to Plaintiff comports with Fla. Stat. §627.736(5). And while Plaintiff’s reiteration of the Medicare formula for calculating CPT codes is plainly stated and objective, Plaintiff improperly suggests that Defendant purposefully altered or “applied” a reduction to this formula in the process of calculating its payments to Plaintiff. (¶¶26 and 27). On the contrary, as Plaintiff correctly points out, and as the referenced explanation of benefits demonstrate, Defendant intended to pay Plaintiff’s reimbursable charges based on either 80% of 200% of the Participating Level of Medicare Part B fee schedule or 200% of the 2007 Limiting Charge of Medicare physician fee schedule, as provided under Florida Statute 627.736(5) and Priority Med. Ctrs. v. Allstate Ins. Co., 319 So. 3d 724 (Fla. 3d DCA 2021). Plaintiff’s reliance on Sunrise Chiropractic & Rehab. Ctr. v. Sec. Nat'l Ins. Co., 321 So. 3d 786, 788-89 (Fla. 4th DCA 2021) to argue that Defendant impermissibly “applied” a budget 6 212724109 CASE NO: 2022-008754-SP-25 (02) neutrality adjuster when calculating reimbursement pursuant to the 2007 Medicare Part B fee schedule is both misinformed and misleading. (¶¶28 and 29). Plaintiff points out, without any specific case citation, that the court in Sunrise “found the insurer's 2 percent reduction improper because the reduction ran afoul of the integrity of the fee schedule.” (¶29). The court also found that the insurer’s reliance on the CMS Payment Files to reduce chiropractic codes by 2% was improper because its contrary to the federal government’s stated point of applying the reduction to the payment files rather than the RVU’s so as to preserve their integrity. Sunrise Chiropractic & Rehab. Ctr. v. Sec. Nat'l Ins. Co., 321 So. 3d 786, 790 (Fla. 4th DCA 2021). What Plaintiff fails to acknowledge is that unlike the so-called 2% reduction issue in Sunrise, wherein the 2% reduction was reflected only in the CMS payment files, the budget neutrality adjustor is incorporated into the Medicare Part B formula for 2007, which Plaintiff does not include alongside the bold typed formula in ¶26. Therefore, Plaintiff is improperly conflating a payment files-based method of reducing CPT code payments with the very method upon which Plaintiff is arguing is the correct payment formula. The absurdity of Plaintiff’s simultaneous reliance upon and repudiation of the Medicare Part B formula is reflected in ¶30, wherein Plaintiff alleges that “when the Defendant determined the allowable amount for the service year was higher than the allowable amount of the applicable fee schedule for 2007, the Defendant impermissibly applied the Budget Neutrality Adjustor to the Conversion Factor within the Medicare Part B formula.” What Plaintiff apparently doesn’t realize, or at least fails to acknowledge, is that the budget neutrality adjustor is already included in the conversion factor of the formula under such circumstances. Thus, Plaintiff’s allegation that Defendant “impermissibly applied the Budget Neutrality Adjustor to the Conversion Factor within the Medicare Part B formula” leads us to the absurd conclusion that for every CPT code that is reimbursable based on the service year, an insurer must dissect from the conversion factor the 7 212724109 CASE NO: 2022-008754-SP-25 (02) exact Budget Neutrality Adjustor amount. Which is a proposition that neither the PIP statute nor even Plaintiff, in its reiteration of the formula in ¶26, contemplates. There simply is no present need for a declaration. “[D]eclaratory relief generally is not appropriate where the alleged controversy is moot.” Rhea v. Dist. Bd. of Trustees of Santa Fe Coll., 109 So. 3d 851, 859 (Fla. 1st DCA 2013). A declaration under Chapter 86 must serve “some useful purpose.” Kendrick v. Everheart, 390 So. 2d 53, 59 (Fla. 1980). Indeed, “declaratory relief generally is not appropriate where the alleged controversy is moot.” Rhea v. Dist. Bd. of Trustees of Santa Fe Coll., 109 So. 3d 851, 859 (Fla. 1st DCA 2013); see also Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992) (“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.”). In this case, the law is well settled that Progressive follow the statute in applying the schedule of maximum charges. There is no law or case that forbids Progressive from relying on the Medicare Fee Schedule. As such, Petitioner’s claim for declaratory relief is improper as its claim is moot. Additionally, in the instant case, the Petitioner does not have standing to maintain this cause of action as it does not have a right to pursue a Declaratory Action based on the Assignment of Benefits. It is undisputed that the Petitioner is not a party to the original contract, but rather asserts standing based on the purported assignment of benefits attached (or alleged to exist) as an Exhibit to its Petition for Declaratory Relief, incorporated herinafter by reference. This assignment does not provide for a private right of action to bring the subject Petition for Declaratory Relief; it only provides Petitioner the right to file suit “for the payment of benefits due.” It also explicity states, that the assignment is not intended to assign any other caused of action, except for the collect of PIP benefits. It is clear based on this Assignment of Benefits, Petitioner only has a right to bring a suit for the payment of PIP benefits. As discussed above, Petitioner no longer has that ability to 8 212724109 CASE NO: 2022-008754-SP-25 (02) ever recover additional payment of PIP benefits here for the subject charges. Since Petitioner’s standing rests solely on its assignment of benefits, and its assignment of benefit’s validity hinges on filing suit for the payment of PIP benefits, Petitioner does not have standing here. An assignment is defined as: "a transfer or setting over of property, or of some right or interest therein, from one person to another; the term denoting not only the act of transfer, but also the instrument by which it is effected." Black's Law Dictionary (71h ed. 1999). In Florida, the black letter rule of assignment creation is: "Any instruction, document or act that vests in one party the right to receive funds arguably due to another party operates as an equitable assignment." See McClure v. Century Estates, Inc. 96 Fla. 568, 120 So. 4 (Fla. 1928). It is well settled Florida law that under Progressive Express Insurance Company v. McGrath Community Chiropractic: "The assignment of personal injury protection (PIP) benefits is not merely a condition precedent to maintain an action on a claim held by the person or entity who filed the lawsuit; rather, it is the basis of the claimant's standing to invoke the processes of the court in the first place." Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281. The Progressive case makes it clear that once it has been proven that an assignment is invalid the case must be dismissed for lack of standing. Furthermore, the Court in MacNeil v. Crestview Hospital Corporation affirmed the lower court’s decision when it dismissed a declaratory action with prejudice, reasoning that the PIP statute does not create a private cause of action for an insured to challenge the reasonableness of a health care provider's charges, and therefore any declaration would amount to an improper advisory opinion. 292 So.3d 840 (1st DCA 2020). The court also upheld the lower court’s decision that a declaratory judgment action is unavailable to [Petitioner] because the PIP statute lacks an express or implied private cause of action to enforce its provisions, rendering any declaratory 9 212724109 CASE NO: 2022-008754-SP-25 (02) judgment an improper “advisory opinion.” Id. For these very reasons, Petitioner lacks standing to bring this instant action for Declaratory Relief. Therefore, Plaintiff’s Complaint fails to state a cause of action for which relief may be granted, as Plaintiff cannot show that there is a bona fide, actual, and present need for said declaration, or that the Plaintiff is unsure of some power, immunity, or privilege, and should be dismissed as a matter of law. The mere conclusory allegations contained in Plaintiff’s Complaint are simply inadequate to state a cause of action for declaratory relief. Florida Statutes, Chapter 86, pertaining to declaratory judgment actions, states that the goal of the Act is 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.” See State Department of Education v. Glasser, 622 So.2d 1003, 1006 (Fla. 2nd DCA 1992). The Florida Supreme Court has determined that a bona fide, present need for declaration which considers the present, ascertainable facts and an existing right of privilege would test to determine whether an issue or case is ripe for declaratory judgment action. See Santa Rosa Count v. Administration Com’n Division of Administrative Hearings, 661 So.2d 1190, 1992-93 (Fla. 1995). Declaratory relief is not available to settle factual issues upon which coverage issues turn under an insurance contract which is clear and unambiguous, as such instances present no need for contract, construction or interpretation. See Travelers Insurance Company v. Emery, 579 So.2d 798, 801 (Fla. 1st DCA 1991). The Third District in the case of Swaine v. Reliable Insurance Company, 200 So.2d 862, 863 (Fla. 3rd DCA 1967), addressed the issue of mere conclusory allegations that a Plaintiff is “in doubt” concerning contractual rights or liabilities is inadequate. In Swaine, the Plaintiff sued his insurance company for failing to defend and indemnify him with 10 212724109 CASE NO: 2022-008754-SP-25 (02) regard to a civil action brought by a third party. The Plaintiff alleged in her complaint that she was “in doubt” concerning her rights under the policy but failed to allege facts which reflected doubt as to the “meaning, interpretation or applicability of the policy or the coverage thereunder”. The action presented was not one for declaratory relief, the Swaine Court reasoned, because the underlying action was really nothing more than an action for breach of contract. In the present action, the Plaintiff has alleged that it is “in doubt” concerning its rights of recovery on the insurance policy involved in this claim. However, a close reading of the Complaint reveals that there is no actual need or doubt which exists. The Plaintiff’s filing of the declaratory judgment in light of and in the face of the abovementioned case law is without merit. As such, Plaintiff’s Petition for Declaratory Relief should be dismissed/stricken. DEMAND FOR TRIAL BY JURY Defendant demands trial by jury of all issues so triable. 11 212724109 CASE NO: 2022-008754-SP-25 (02) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via E-Mail on May 23, 2022 to Matthew C. Barber, Esquire, Daly & Barber, P.A., Attorney for Plaintiff, CDM Chiros, LLC d/b/a New Tampa Chiropractic And Injury Center a/a/o Ryan Davie, PIPPortalLaw@gmail.com, (954) 741-2000/(954) 337-4642 (F) and John C. Daly, Esquire, Daly & Barber, P.A., Attorney for Plaintiff, CDM Chiros, LLC d/b/a New Tampa Chiropractic And Injury Center a/a/o Ryan Davie, PIPPortalLaw@gmail.com, (954) 741- 2000/(954) 337-4642 (F). Progressive PIP House Counsel Attorneys for Defendant 9675 NW 117 Avenue Suite 200 Medley, FL 33178 (954) 903-6639 (Asst.)/(954) 903-6622 (Direct) Fax: (305) 887-2781 SERVICE DESIGNATIONS: Primary: SFPIPHC@Progressive.com Secondary: DAYNA_J_BROWNE@progressive.com By: /s/Dayna J Browne, Esq. DAYNA J. BROWNE, ESQUIRE Florida Bar No. 58195 “Salaried Employees of Progressive Casualty Insurance Company” 12 212724109