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Filing # 117128295 E-Filed 11/23/2020 01:22:25 PM
IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA
MD NOW MEDICAL CENTERS, INC. d/b/a CASE NO.: CONO 20-019655 (70)
MD NOW (a/a/o Stephanie Degraaf),
Plaintiff(s),
v.
GEICO GENERAL INSURANCE
COMPANY
Defendant(s).
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
COMES NOW, the Defendant, GEICO GENERAL INSURANCE COMPANY, by and
through their undersigned counsel, and pursuant to Rule 1.140, Florida Rules of Civil Procedure,
hereby files the instant Defendant’s Motion to Dismiss Plaintiff's Complaint, and in support
thereof, states as follows:
1. Plaintiff filed an action for declaratory judgment relief in the instant suit.
Specifically, Plaintiff asks this Court to make a declaration as to whether Defendant may issue
payment at less than 80% of 200% of the participating physician’s fee schedule.
2. Plaintiff claims to be “in doubt as to its rights under the F.S. 627.736” with
respect to whether Defendant may issue payment at less than 80% off 200% of the participating
physician’s fee schedule.
3. A motion to dismiss pursuant to Rule 1.140(b)(6), Florida Rules of Civil
Procedure, is designed to test the legal sufficiency of the complaint. See Chodorow v. Porto
Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3rd DCA 2007). The purpose of a motion to dismiss is to
determine whether the pleader has properly alleged a cause of action upon which relief may be
granted. See United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103
Sensitivity: Confidential
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/23/2020 01:22:25 PM.****(Fla. 3rd DCA 2010). If the pleader has failed to do so, an order of dismissal shall be entered.
See Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204, 1206 (Fla. Sth DCA 2003). In determining
whether an order of dismissal is appropriate, the court must strictly confine itself to the
allegations contained within the four corners of the complaint. See Biscayne Inv. Group, Ltd. V.
Guarantee Management Services, Inc., 903 So.2d 251, 253 (Fla. 3rd DCA 2005).
4. With regard to Plaintiff's Complaint seeking a declaratory judgment from this
Honorable Court, Plaintiff's Complaint fails to state a cause of action upon which relief may be
granted, and therefore, Plaintiff's Complaint must be dismissed.
5. The Florida No-Fault Statute does not independently create a cause of action
pursuant to section 627.736, Florida Statutes. The Florida No-Fault Statute only authorizes one
cause of action, which is a cause of action for personal insurance protection benefits under the
subject policy of insurance. See United Auto. Ins. Co. v. A Ist Choice Healthcare Systems, etc.
21 So.3d 124, 129 (Fla. 3rd DCA 2009) (holding that “the PIP statute only authorizes one cause
of action: a cause of action for personal injury protection benefits.”); see also section
627.736(11), Florida Statutes.
6. Plaintiff's Complaint for a declaratory judgment fails to state a cause of action as
Plaintiff has failed to plead any facts which would satisfy the six (6) requisites set forth pursuant
to section 86.011, Florida Statutes, to wit: (1) a bona fide, actual, present and practical need for
declaration; (2) a present ascertained or ascertainable state of facts or a present controversy
of facts; (3) a power, privilege, immunity or right of the party seeking relief must be
dependent on the facts or applicable to the facts; (4) another person or persons must have an
actual, present and adverse interest in the subject matter; (5) the adverse interest must be before
the court; and (6) the declaration must not be merely giving legal advice. City of Hollywood v.
Sensitivity: Confidential 2Florida Power & Light Co., 624 So. 2d 285, (Fla. 4th DCA 1993); Accord Department of
Revenue v. Markham, 396 So. 2d 1120, (Fla. 1981); Robinson v. Palm Beach Shores, 388 So. 2d
314, (Fla. 4th DCA 1980); Yell v. Healthmark of Walton, Inc., 772 So. 2d 568, 2000 Fla. App.
LEXIS 14659 (Fla. 1st DCA 2000); X Corp. v. Y Person, 622 So. 2d 1098, 1101 (Fla. 2d DCA
1993); Flagship Real Estate Corp. v. Flagship Bank, Inc., 374 So. 2d 1020 (Fla. 2d DCA 1979).
7. The Plaintiff does not truly seek the construction of any of the clauses in the
contract as Plaintiff fails to cite any provisions of the policy it is in doubt about. Accordingly,
there is no power, privilege, immunity or right of the party seeking relief which is dependent on
the facts or applicable to the facts of this matter, as stated above, there is no present need for
determination as the underlying facts upon which the determination would be made are
attenuated from any present controversy, the dispute is no longer a present controversy, and any
judgment made would merely be giving legal advice. Askew v. City of Ocala, 348 So.2d 308
(Fla. 1977) (the courts have no power to entertain a declaratory judgment action which involves
no present controversy and where the judgment sought will not constitute a binding adjudication
of the rights of the parties.)
8. In order to seek declaratory relief, the Plaintiff must allege that no other legal
relief is available. One of the underlying reasons for Chapter 86, Florida Statutes, the
"Declaratory Judgment Act" is "to render practical help in ending controversies which have not
reached the stage where other legal relief is immediately available." X Corp. v. Y Person, 622 So.
2d 1098. 1100 (Fla. 2d DCA 1993) (emphasis added), citing Bell v. Associated Independents,
Inc., 143 So. 2d 904 (Fla. 2d DCA 1962). Plaintiff is craftily disguising a breach of contract
action as an action for declaratory relief rather than pursuing the available relief through a proper
breach of contract action to avoid the demand letter requirement.
Sensitivity: Confidential 39. Accordingly, Plaintiff's Complaint for declaratory judgment fails to state a cause
of action and should therefore be dismissed.
10. In Bristol West Ins. Co. v. MD Readers, Inc., MD Readers sought a declaration of
the correct statutory formula for calculating payments under PIP benefits for the physician fees in
connection with radiological readings. 52 So. 3d 48, 50 (Fla. Dist. Ct. App. 2010). MD Readers
moved to certify a class of health care providers receiving payment for services from Bristol
West under PIP benefits. Jd. Bristol West Ins. Co. objected to class certification alleging the
declaratory judgment was simply a disguise for money damages, and MD Readers had not
submitted a demand letter pursuant to section 627.736(11), Florida Statutes. Jd. The lower
Court certified the class, and Bristol West Ins. Co. appealed to the Fourth District Court of
Appeals. Jd. The Fourth DCA affirmed the class certification, and stated that MD Readers
“denied any right in this action, including supplementary relief, to seek damages, we conclude
that the court did not err in certifying a class for the sole purpose to declare the correct
calculation to be applied for reimbursement of MRI services from August 2004 to August 2005.”
Id. at 51.
11. Here, in Plaintiff's Wherefore paragraph Part B, Plaintiff is seeking “supplemental
relief,” and therefore, Plaintiff is disguising a breach of contract action as a declaratory action.
12. Furthermore, had Plaintiff submitted a valid demand letter they would have been
notifies that benefits are exhausted.
WHEREFORE, Defendant, Government Employees Insurance Company by and through
their undersigned counsel, respectfully requests this Honorable Court to enter an Order
dismissing Plaintiff's Complaint and grant any other relief the Court deems just and proper.
Sensitivity: Confidential 4CERTIFICATE OF SERVICE
I HEREBY CERTIFY a true and correct copy of the foregoing has been furnished by
Electronic Mail on this the 23RD day of November, 2020 to the following designated service
email address: Chad L. Christensen, Esq., GED Lawyers, L.L.P., service@gedlawyers.com.
Sensitivity: Confidential
The Law Office of George L. Cimballa, III
/s/ Rhonda Boettcher
Rhonda Boettcher, Esq.
(Employees of GEICO General Insurance Company)
Florida Bar No.: 15160
600 N. Pine Island Road, STE 400
Plantation, Florida 33324
Phone: 954-472-6585
Facsimile: 954-472-6586
Attorney for Defendant(s)
Service Email: ftlgeico@geico.com
Preview
Filing # 117128295 E-Filed 11/23/2020 01:22:25 PM IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA MD NOW MEDICAL CENTERS, INC. d/b/a CASE NO.: CONO 20-019655 (70) MD NOW (a/a/o Stephanie Degraaf), Plaintiff(s), v. GEICO GENERAL INSURANCE COMPANY Defendant(s). DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT COMES NOW, the Defendant, GEICO GENERAL INSURANCE COMPANY, by and through their undersigned counsel, and pursuant to Rule 1.140, Florida Rules of Civil Procedure, hereby files the instant Defendant’s Motion to Dismiss Plaintiff's Complaint, and in support thereof, states as follows: 1. Plaintiff filed an action for declaratory judgment relief in the instant suit. Specifically, Plaintiff asks this Court to make a declaration as to whether Defendant may issue payment at less than 80% of 200% of the participating physician’s fee schedule. 2. Plaintiff claims to be “in doubt as to its rights under the F.S. 627.736” with respect to whether Defendant may issue payment at less than 80% off 200% of the participating physician’s fee schedule. 3. A motion to dismiss pursuant to Rule 1.140(b)(6), Florida Rules of Civil Procedure, is designed to test the legal sufficiency of the complaint. See Chodorow v. Porto Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3rd DCA 2007). The purpose of a motion to dismiss is to determine whether the pleader has properly alleged a cause of action upon which relief may be granted. See United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103 Sensitivity: Confidential *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/23/2020 01:22:25 PM.****(Fla. 3rd DCA 2010). If the pleader has failed to do so, an order of dismissal shall be entered. See Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204, 1206 (Fla. Sth DCA 2003). In determining whether an order of dismissal is appropriate, the court must strictly confine itself to the allegations contained within the four corners of the complaint. See Biscayne Inv. Group, Ltd. V. Guarantee Management Services, Inc., 903 So.2d 251, 253 (Fla. 3rd DCA 2005). 4. With regard to Plaintiff's Complaint seeking a declaratory judgment from this Honorable Court, Plaintiff's Complaint fails to state a cause of action upon which relief may be granted, and therefore, Plaintiff's Complaint must be dismissed. 5. The Florida No-Fault Statute does not independently create a cause of action pursuant to section 627.736, Florida Statutes. The Florida No-Fault Statute only authorizes one cause of action, which is a cause of action for personal insurance protection benefits under the subject policy of insurance. See United Auto. Ins. Co. v. A Ist Choice Healthcare Systems, etc. 21 So.3d 124, 129 (Fla. 3rd DCA 2009) (holding that “the PIP statute only authorizes one cause of action: a cause of action for personal injury protection benefits.”); see also section 627.736(11), Florida Statutes. 6. Plaintiff's Complaint for a declaratory judgment fails to state a cause of action as Plaintiff has failed to plead any facts which would satisfy the six (6) requisites set forth pursuant to section 86.011, Florida Statutes, to wit: (1) a bona fide, actual, present and practical need for declaration; (2) a present ascertained or ascertainable state of facts or a present controversy of facts; (3) a power, privilege, immunity or right of the party seeking relief must be dependent on the facts or applicable to the facts; (4) another person or persons must have an actual, present and adverse interest in the subject matter; (5) the adverse interest must be before the court; and (6) the declaration must not be merely giving legal advice. City of Hollywood v. Sensitivity: Confidential 2Florida Power & Light Co., 624 So. 2d 285, (Fla. 4th DCA 1993); Accord Department of Revenue v. Markham, 396 So. 2d 1120, (Fla. 1981); Robinson v. Palm Beach Shores, 388 So. 2d 314, (Fla. 4th DCA 1980); Yell v. Healthmark of Walton, Inc., 772 So. 2d 568, 2000 Fla. App. LEXIS 14659 (Fla. 1st DCA 2000); X Corp. v. Y Person, 622 So. 2d 1098, 1101 (Fla. 2d DCA 1993); Flagship Real Estate Corp. v. Flagship Bank, Inc., 374 So. 2d 1020 (Fla. 2d DCA 1979). 7. The Plaintiff does not truly seek the construction of any of the clauses in the contract as Plaintiff fails to cite any provisions of the policy it is in doubt about. Accordingly, there is no power, privilege, immunity or right of the party seeking relief which is dependent on the facts or applicable to the facts of this matter, as stated above, there is no present need for determination as the underlying facts upon which the determination would be made are attenuated from any present controversy, the dispute is no longer a present controversy, and any judgment made would merely be giving legal advice. Askew v. City of Ocala, 348 So.2d 308 (Fla. 1977) (the courts have no power to entertain a declaratory judgment action which involves no present controversy and where the judgment sought will not constitute a binding adjudication of the rights of the parties.) 8. In order to seek declaratory relief, the Plaintiff must allege that no other legal relief is available. One of the underlying reasons for Chapter 86, Florida Statutes, the "Declaratory Judgment Act" is "to render practical help in ending controversies which have not reached the stage where other legal relief is immediately available." X Corp. v. Y Person, 622 So. 2d 1098. 1100 (Fla. 2d DCA 1993) (emphasis added), citing Bell v. Associated Independents, Inc., 143 So. 2d 904 (Fla. 2d DCA 1962). Plaintiff is craftily disguising a breach of contract action as an action for declaratory relief rather than pursuing the available relief through a proper breach of contract action to avoid the demand letter requirement. Sensitivity: Confidential 39. Accordingly, Plaintiff's Complaint for declaratory judgment fails to state a cause of action and should therefore be dismissed. 10. In Bristol West Ins. Co. v. MD Readers, Inc., MD Readers sought a declaration of the correct statutory formula for calculating payments under PIP benefits for the physician fees in connection with radiological readings. 52 So. 3d 48, 50 (Fla. Dist. Ct. App. 2010). MD Readers moved to certify a class of health care providers receiving payment for services from Bristol West under PIP benefits. Jd. Bristol West Ins. Co. objected to class certification alleging the declaratory judgment was simply a disguise for money damages, and MD Readers had not submitted a demand letter pursuant to section 627.736(11), Florida Statutes. Jd. The lower Court certified the class, and Bristol West Ins. Co. appealed to the Fourth District Court of Appeals. Jd. The Fourth DCA affirmed the class certification, and stated that MD Readers “denied any right in this action, including supplementary relief, to seek damages, we conclude that the court did not err in certifying a class for the sole purpose to declare the correct calculation to be applied for reimbursement of MRI services from August 2004 to August 2005.” Id. at 51. 11. Here, in Plaintiff's Wherefore paragraph Part B, Plaintiff is seeking “supplemental relief,” and therefore, Plaintiff is disguising a breach of contract action as a declaratory action. 12. Furthermore, had Plaintiff submitted a valid demand letter they would have been notifies that benefits are exhausted. WHEREFORE, Defendant, Government Employees Insurance Company by and through their undersigned counsel, respectfully requests this Honorable Court to enter an Order dismissing Plaintiff's Complaint and grant any other relief the Court deems just and proper. Sensitivity: Confidential 4CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing has been furnished by Electronic Mail on this the 23RD day of November, 2020 to the following designated service email address: Chad L. Christensen, Esq., GED Lawyers, L.L.P., service@gedlawyers.com. Sensitivity: Confidential The Law Office of George L. Cimballa, III /s/ Rhonda Boettcher Rhonda Boettcher, Esq. (Employees of GEICO General Insurance Company) Florida Bar No.: 15160 600 N. Pine Island Road, STE 400 Plantation, Florida 33324 Phone: 954-472-6585 Facsimile: 954-472-6586 Attorney for Defendant(s) Service Email: ftlgeico@geico.com