11 Fla. L. Weekly Supp. 856a
Insurance — Personal injury protection — Attorney’s fees — Timeliness of motion — Time requirement for filing motion to tax fees and costs under rule 1.525 does not begin to run from confession of judgment, but from date judgment is entered on confession of judgment — Moreover, because attorney’s fees and costs are part of plaintiff’s legal claim in every PIP case and insurer is on notice that plaintiff will claim attorney’s fees from day suit is served, notice purpose of rule is satisfied, and insurer cannot claim that they were unaware that plaintiff would bring claim for fees until motion to tax fees was served and somehow suffered prejudice
JEFFREY B. FRIEDMAN, M.D., P.A. as assignee of Keith Marosek, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-587-19-S. July 6, 2004. John R. Sloop, Judge. Counsel: J.W. Webb. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter came before the Court on June 16, 2004, on Defendant’s Motion for Final Summary Judgment, and, having been advised in the premises and having heard argument of counsel, the court finds that:
1. On or about February 10, 2003, the Plaintiff filed this lawsuit to recover overdue PIP benefits for Plaintiff’s bills for health care services provided to Keith Marosek.
2. On November 7, 2003, after approximately nine months of litigation, the parties agreed to settle the claim for PIP benefits and interest, leaving the amount of attorney fees and costs as the only remaining issue.
3. On November 13, 2003, Defendant issued payment of the PIP benefits and interest per the settlement agreement, thereby confessing judgment. Wollard v. Lloyds & Cos., 439 So. 2d 217 (Fla. 1983).
4. On March 10, 2004, Plaintiff served a Motion to Tax Attorney Fees and Costs.
5. On May 17, 2004, Defendant served a Motion for Final Summary Judgment based on the assertion that Fla. R. Civ. P. 1.525 (2004) is operative in this matter.
6. Fla. R. Civ. P. 1.525 states:
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
7. Defendant argues that its confession of judgment equates to a “final judgment” which triggers the 30 day time requirement for filing a motion to tax fees and costs under Fla. R. Civ. P. 1.525 (2004), even though no judgment was entered or filed, and that Plaintiff is therefore barred from recovering fees and costs because Plaintiff’s attorney fee motion was filed more than 30 days after Defendant confessed judgment.
8. Plaintiff argues that:
a. The plain language of the rules promulgated by the Supreme Court of Florida are binding upon the trial and appellate courts. State v. Lott, 286 So. 2d 565 (Fla. 1973); Ser-Nestler, Inc. v. General Finance Loan Company of Miami Northwest, 167 So. 2d 230 (Fla. 3rd DCA 1964); State v. Battle, 302 So. 2d 782 (Fla. 3rd DCA 1974). The plain language of Fla. R. Civ. P. 1.525 (2004) requires that, before the time requirement of the rule becomes operative, a judgment must be entered by the court, and such has not occurred in this case.
b. Fla. R. Civ. P. 1.525 (2004) is a “notice” rule, which contemplates motions to tax fees and costs after entry of a final judgment or dismissal, and which is designed to apprize the adverse party of the claim for fees in order to avoid prejudice to that party. When attorney fees are part of the legal claim, as they are in this case and in every PIP case, the Defendant is on notice that the Plaintiff is claiming attorney fees from the day the lawsuit is served, and therefore cannot demonstrate any prejudice.
9. Having considered the foregoing arguments of counsel and having reviewed the case law presented by the parties,
IT IS ADJUDGED that:
1. Fla. R. Civ. P. 1.525 (2004) must be strictly construed and applied in accordance with its plain language, and although Wollard v. Lloyds & Cos., 439 So. 2d 217 (Fla. 1983) holds that payment of the claim by a defendant is the equivalent of a confession of judgment or verdict in favor of the insured, until such time as a judgment thereon is entered by the court, the time requirement for filing the motion to tax fees and costs does not begin to run.
2. The purpose of Fla. R. Civ. P. 1.525 (2004) is to prevent a losing party from being unsure about whether the prevailing party will seek fees and costs, and to allow the losing party “closure” of the case. Attorney fees and costs are part of the Plaintiff’s legal claim in every PIP case, and the Defendant is on notice that the Plaintiff will claim attorney fees from the day the lawsuit is served. Accordingly, the “notice” purpose of Fla. R. Civ. P. 1.525 (2004) is satisfied, and Defendant cannot claim that they were unaware that the Plaintiff would bring a claim for fees until the motion was served and therefore somehow suffered prejudice.
3. Accordingly, Defendant’s Motion for Final Summary Judgment is DENIED.
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