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Filing # 118214372 E-Filed 12/15/2020 10:57:31 AM
IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA
MD NOW MEDICAL CENTERS, INC D/B/A CASE NO. 20-019651 CONO 73
MD NOW (PATIENT: ANDREW LEE), FLORIDA BAR NO. 23709
Plaintiff,
vs.
GEICO GENERAL INSURANCE COMPANY,
Defendant.
DEFENDANT’S MOTION TO DISMISS
COMES NOW, the Defendant, GEICO GENERAL INSURANCE COMPANY, by and
through the undersigned counsel, hereby files its Motion to Dismiss and states:
1. Plaintiff's Complaint seeks declaratory relief. However, this count has no merit
and is not proper for declaratory relief as Plaintiff failed to demonstrate any bona fide dispute.
Accordingly, Defendant moves to dismiss this count.
2. Chapter 86, Florida Statutes, governs the Court’s jurisdiction to declare rights and
powers pursuant to a complaint for a declaratory judgment.
3. The Declaratory Judgment Act may not be invoked unless there is a bona fide
dispute between adversaries as to present a justiciable question. Grable v. Hillsborough County
Port Authority, 132 So. 2d 423 (Fla. 2d DCA 1961).
4. In Appel v. Scott, 479 So. 2d 800 (Fla. 2d DCA 1985), the Second District Court
of Appeals set forth the allegations necessary to state a cause of action for declaratory relief. The
Appel Court stated:
In order to invoke jurisdiction under the Declaratory Judgment Act,
the complaint must show that there is a bona fide, actual, present
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/15/2020 10:57:31 AM.****and practical need for the declaration; that the declaration will deal
with present, ascertained or ascertainable state of facts, or present
controversy as to a state of facts; that some immunity, power,
privilege or right is dependent upon facts or law applicable to 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 interests are all before the court; and that the relief sought
is not merely the giving of legal advice by the courts or the answers
to questions propounded from curiosity.
5. Plaintiff has not demonstrated these requirements. See Connolly v. Sebeco, 89
So. 2d 482 (Fla. 1956) (plaintiffs complaint must advise court and defendant of the nature of a
cause of action).
6. Pursuant to Okaloosa Island Leaseholders v. Okaloosa Island Authority, 308 So.
2d 120 (Fla. 1‘ DCA 1975), there must be a bona fide dispute between contending parties to a
present justiciable issue in order to invoke the declaratory judgment act. See Hildebrandt v.
Department of Natural Resources, 313 So. 2d 73 (Fla. 3d DCA 1975) (dismissal of declaratory
action is proper where complaint does not present a matter provided under Chapter 86, Florida
Statutes, or where for some other reason the resort to declaratory judgment is legally
inappropriate).
7. There is no bona fide dispute between the parties as Defendant has admitted the
existence of a policy of insurance issued to its policy holder.
8. Moreover, there is no basis for declaratory relief because there is an adequate
remedy at law. Here the adequate legal remedy is damages for alleged breach of contract.
“Declaratory relief is not available where the issue is whether an unambiguous contract has
been breached.” MRI Assocs. Of St. Pete, Inc. v. State Farm Mut. Auto. Ins. Co., 755 F. Supp.
2d 1205, 1210 (M.D. Fla. 2010) (determining declaratory judgment was unavailable in a similar
case challenging “whether the amount calculated by Defendant’s was, in fact, 80% of areasonable amount.”). See also Central Magnetic Imaging Open MRI of Plantation, Ltd. v.
State Farm Mut. Auto. Ins. Co., 789 F. Supp. 2d 1311 (S.D. Fla. 2011).
9. In State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA
2002), the Court ruled “it is not a court’s function to determine, across the board, that an
insurer’s internal method of gauging reasonableness does or does not comply with the statute.
The fact-finder must construe the word ‘reasonable’ and determine whether the insurance
company’s evaluation of medical bills fits the definition on a case-by-case basis.”
10. The Sestile court continued: “If an insurer refuses to pay medical expenses that an
insured believes are reasonable, the insured may sue, but he or she bears the burden of
establishing that the charges are, in fact, reasonable. In some cases, a computer database may
accurately assess the reasonableness of a medical provider’s bill; in other cases, it may be far
from the mark. But this is the insured’s burden to prove.” Id. (internal citations omitted)
(emphasis added).
11. | Commingling a declaratory action with a breach of contract action is improper
when the true relief sought is breach of contract. See Travelers Insurance Co. v. Emery, 579 So.
2d 798 (Fla. Ist DCA 1991) (“declaratory relief is not generally available to settle factual
disputes under which insurance coverage questions turn under clear and unambiguous policy’).
However, as the Emery court points out, “questions of fact and disagreements concerning
coverage under insurance policies are proper subjects for a declaratory judgment if necessary to a
construction of legal rights.
12. Further, an insurer may seek determination of its obligation to defend its insured
by filing a declaratory judgment action.” Id. at 801. In Swain v. Reliable Ins. Co., 200 So. 2d
862 (Fla. 3d DCA 1967), the Court stated that a complaint seeking specific performance of theinsurer’s duties under an insurance policy was not sufficient to state a cause of action for
declaratory relief, where the complaint stated no facts or circumstances demonstrating doubt as to
the meaning, interpretation, or coverage of the policy.
13. While the courts have recognized that a declaratory action is an appropriate
vehicle for relief in a PIP matter, this is only where coverage is at issue. See Tavares v. Allstate
Insurance Co., 342 So. 2d 551 (Fla. 3d DCA 1977). In Tavares, there was an issue of whether
the claimant was an “insured” under the policy at issue and, therefore, declaratory relief was
necessary to construct the insurance coverage question. Id.
14. The case at bar is not a case where coverage is at issue, or where Plaintiff is
seeking interpretation of the policy’s language. As the courts have explained, the Declaratory
Judgment Act is not to be used as a tool to advise attorneys as to the proper path to pursue, nor is
such Act to be employed for determination of purely factual issues under instrument that is clear
and unambiguous and presents no need for construction. Kelner v. Woody, 399 So. 2d 35 (Fla.
3rd DCA 1981) (“only existing issue whether appellees are in breach of agreement is factual in
nature and properly determinable in an action at law’).
15. Accordingly, Plaintiff's Complaint is wholly without merit and should be
dismissed.
DEMAND FOR JURY TRIAL
Defendant hereby demands trial by jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic Mail on this the 15th day of December, 2020 to the following designated service email
address: Chad L Christensen, Esq., Ged Lawyers LLP, service@gedlawyers.com.
The Law Office of George L. Cimballa, II/s/ Daniel Cardwell, Esq.
Daniel Cardwell, Esq.
(Employees of GEICO General Insurance Company)
Florida Bar No.: 23709
600 N. Pine Island Road, STE 400
Plantation, Florida 33324
Phone: 954-472-6585
Facsimile: 954-472-6586
Attomey for Defendant Geico General Insurance
Company
Service Email: filpipgeico@geico.com
Preview
Filing # 118214372 E-Filed 12/15/2020 10:57:31 AM IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA MD NOW MEDICAL CENTERS, INC D/B/A CASE NO. 20-019651 CONO 73 MD NOW (PATIENT: ANDREW LEE), FLORIDA BAR NO. 23709 Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. DEFENDANT’S MOTION TO DISMISS COMES NOW, the Defendant, GEICO GENERAL INSURANCE COMPANY, by and through the undersigned counsel, hereby files its Motion to Dismiss and states: 1. Plaintiff's Complaint seeks declaratory relief. However, this count has no merit and is not proper for declaratory relief as Plaintiff failed to demonstrate any bona fide dispute. Accordingly, Defendant moves to dismiss this count. 2. Chapter 86, Florida Statutes, governs the Court’s jurisdiction to declare rights and powers pursuant to a complaint for a declaratory judgment. 3. The Declaratory Judgment Act may not be invoked unless there is a bona fide dispute between adversaries as to present a justiciable question. Grable v. Hillsborough County Port Authority, 132 So. 2d 423 (Fla. 2d DCA 1961). 4. In Appel v. Scott, 479 So. 2d 800 (Fla. 2d DCA 1985), the Second District Court of Appeals set forth the allegations necessary to state a cause of action for declaratory relief. The Appel Court stated: In order to invoke jurisdiction under the Declaratory Judgment Act, the complaint must show that there is a bona fide, actual, present *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/15/2020 10:57:31 AM.****and practical need for the declaration; that the declaration will deal with present, ascertained or ascertainable state of facts, or present controversy as to a state of facts; that some immunity, power, privilege or right is dependent upon facts or law applicable to 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 interests are all before the court; and that the relief sought is not merely the giving of legal advice by the courts or the answers to questions propounded from curiosity. 5. Plaintiff has not demonstrated these requirements. See Connolly v. Sebeco, 89 So. 2d 482 (Fla. 1956) (plaintiffs complaint must advise court and defendant of the nature of a cause of action). 6. Pursuant to Okaloosa Island Leaseholders v. Okaloosa Island Authority, 308 So. 2d 120 (Fla. 1‘ DCA 1975), there must be a bona fide dispute between contending parties to a present justiciable issue in order to invoke the declaratory judgment act. See Hildebrandt v. Department of Natural Resources, 313 So. 2d 73 (Fla. 3d DCA 1975) (dismissal of declaratory action is proper where complaint does not present a matter provided under Chapter 86, Florida Statutes, or where for some other reason the resort to declaratory judgment is legally inappropriate). 7. There is no bona fide dispute between the parties as Defendant has admitted the existence of a policy of insurance issued to its policy holder. 8. Moreover, there is no basis for declaratory relief because there is an adequate remedy at law. Here the adequate legal remedy is damages for alleged breach of contract. “Declaratory relief is not available where the issue is whether an unambiguous contract has been breached.” MRI Assocs. Of St. Pete, Inc. v. State Farm Mut. Auto. Ins. Co., 755 F. Supp. 2d 1205, 1210 (M.D. Fla. 2010) (determining declaratory judgment was unavailable in a similar case challenging “whether the amount calculated by Defendant’s was, in fact, 80% of areasonable amount.”). See also Central Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Mut. Auto. Ins. Co., 789 F. Supp. 2d 1311 (S.D. Fla. 2011). 9. In State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002), the Court ruled “it is not a court’s function to determine, across the board, that an insurer’s internal method of gauging reasonableness does or does not comply with the statute. The fact-finder must construe the word ‘reasonable’ and determine whether the insurance company’s evaluation of medical bills fits the definition on a case-by-case basis.” 10. The Sestile court continued: “If an insurer refuses to pay medical expenses that an insured believes are reasonable, the insured may sue, but he or she bears the burden of establishing that the charges are, in fact, reasonable. In some cases, a computer database may accurately assess the reasonableness of a medical provider’s bill; in other cases, it may be far from the mark. But this is the insured’s burden to prove.” Id. (internal citations omitted) (emphasis added). 11. | Commingling a declaratory action with a breach of contract action is improper when the true relief sought is breach of contract. See Travelers Insurance Co. v. Emery, 579 So. 2d 798 (Fla. Ist DCA 1991) (“declaratory relief is not generally available to settle factual disputes under which insurance coverage questions turn under clear and unambiguous policy’). However, as the Emery court points out, “questions of fact and disagreements concerning coverage under insurance policies are proper subjects for a declaratory judgment if necessary to a construction of legal rights. 12. Further, an insurer may seek determination of its obligation to defend its insured by filing a declaratory judgment action.” Id. at 801. In Swain v. Reliable Ins. Co., 200 So. 2d 862 (Fla. 3d DCA 1967), the Court stated that a complaint seeking specific performance of theinsurer’s duties under an insurance policy was not sufficient to state a cause of action for declaratory relief, where the complaint stated no facts or circumstances demonstrating doubt as to the meaning, interpretation, or coverage of the policy. 13. While the courts have recognized that a declaratory action is an appropriate vehicle for relief in a PIP matter, this is only where coverage is at issue. See Tavares v. Allstate Insurance Co., 342 So. 2d 551 (Fla. 3d DCA 1977). In Tavares, there was an issue of whether the claimant was an “insured” under the policy at issue and, therefore, declaratory relief was necessary to construct the insurance coverage question. Id. 14. The case at bar is not a case where coverage is at issue, or where Plaintiff is seeking interpretation of the policy’s language. As the courts have explained, the Declaratory Judgment Act is not to be used as a tool to advise attorneys as to the proper path to pursue, nor is such Act to be employed for determination of purely factual issues under instrument that is clear and unambiguous and presents no need for construction. Kelner v. Woody, 399 So. 2d 35 (Fla. 3rd DCA 1981) (“only existing issue whether appellees are in breach of agreement is factual in nature and properly determinable in an action at law’). 15. Accordingly, Plaintiff's Complaint is wholly without merit and should be dismissed. DEMAND FOR JURY TRIAL Defendant hereby demands trial by jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail on this the 15th day of December, 2020 to the following designated service email address: Chad L Christensen, Esq., Ged Lawyers LLP, service@gedlawyers.com. The Law Office of George L. Cimballa, II/s/ Daniel Cardwell, Esq. Daniel Cardwell, Esq. (Employees of GEICO General Insurance Company) Florida Bar No.: 23709 600 N. Pine Island Road, STE 400 Plantation, Florida 33324 Phone: 954-472-6585 Facsimile: 954-472-6586 Attomey for Defendant Geico General Insurance Company Service Email: filpipgeico@geico.com