10 Fla. L. Weekly Supp. 533a
Insurance — Attorney’s fees — Interest — Post-suit payment of medical bill is confession of judgment which waived any potential defenses that insurer could have asserted — Summary judgment granted in favor of plaintiff as to payment of the bill and entitlement to interest on late payment, attorney’s fees, and costs — Plaintiff’s motion for summary judgment denied as to insurer’s termination of chiropractic benefits following compulsory medical examination pending additional discovery and inventory of record evidence
MARIA SUAVITA, Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO 01-17451. May 6, 2003. C. Jeffery Arnold, Judge. Counsel: Gregory C. Maaswinkel, Jeffrey M. Byrd, P.A., Orlando. Lisa S. Del Vecchio, St. Petersburg.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This cause came to be heard before the Court on Plaintiff’s Motion for Partial Summary Judgment on March 6, 2003 and 11:30 a.m., and the Court having considered the testimony and arguments presented, rules as follows:
Plaintiff’s Motion for Partial Summary Judgment is GRANTED in part and DENIED in part without prejudice.
1. The Court grants the Plaintiff’s Motion with respect to Progressive’s payment of the Sand Lake Hospital bill, which was the subject of this litigation. The evidence of record shows that the Plaintiff submitted the bill for payment prior to suit having been filed. Three months after suit was filed, Progressive ultimately paid the subject bill. Progressive contends that it had various defenses to non-payment of such bill, including failure to submit the bill on the appropriate form, and assignment of benefits by the Plaintiff. The Court has also considered Plaintiff’s argument that the Defendant never raised such defenses in its answer to the complaint, and as such there are no legal issues raised by the pleadings to support the Defendant’s argument. The Plaintiff has also argued that such post-suit payment was a confession of judgment. Without addressing the issue of failure to assert appropriate defenses to non-payment of such bill, the Court GRANTS the Plaintiff’s Motion for Partial Summary Judgment and finds that the payment by Progressive, after suit had been filed, is a confession of judgment; therefore, any defenses that the Defendant could have asserted relating to payment of such bill were waived, forfeited, or merged into the payment of such dispute. The Court has considered the cases of Wollard vs. Lloyd’s, 439 So.2d 217 (Fla. 1983), United Automobile Insurance Co. vs. Zulma, 661 So.2d 947 (Fla. 4th DCA 1995), Crooks vs. State Farm, 659 So.2d 1266 (Fla. 3d DCA 1995), and Palmer vs. Fortune Insurance Company, 776 So.2d 1019 (Fla. 5th DCA 2001), which support this ruling. The Court finds that it does not matter whether the Defendant’s defenses were real or actual defenses because any such potential defense would have been necessarily waived by Progressive’s post-suit payment.
2. Accordingly, the Court also GRANTS Plaintiff’s Motion for Partial Summary Judgment on the issue of entitlement to interest on the late payment of such bill, and the Court finds the Plaintiff is entitled to reasonable attorney’s fees and costs in this matter. If the parties cannot agree on the calculated amounts, the parties may hold another hearing on such issues.
3. Concerning the remaining issues raised by the Plaintiff relating to Progressive’s termination of chiropractic benefits following a compulsory medical examination requested by Progressive, the Court DENIES Plaintiff’s Motion without prejudice. The Court is clear as to which evidence is a matter of record before the Court. The Court has also invited the parties to engage in additional discovery to further define some of those issues that are relevant to this Court’s determination of this matter so that the Court may further consider this issue. Such motion is denied without prejudice to allow the parties an opportunity to return to the Court following additional discovery, and after an inventory of the record evidence in the Court’s file, so the Court can revisit this issue.
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