11 Fla. L. Weekly Supp. 660a
Insurance — Medpay — Where insurer issued check for ambulance service under medpay portion of policy after suit for medpay and personal injury protection benefits was filed, but prior to insurer having knowledge of suit, payment constituted confession of judgment — Insurer’s motion for summary judgment denied
RURAL METRO AMBULANCE INC., as assignee of Damon Taylor, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-4497. May 4, 2004. Donald L. Marblestone, Judge. Counsel: Rutledge M. Bradford, Rutledge M. Bradford, P.A., Orlando. Philip Friedman, St. Petersburg.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on Defendant’s Motion for Final Summary Judgment and this Court having heard arguments of counsel makes the followingFINDINGS OF FACT:
1. The Plaintiff in this matter is Rural Metro Ambulance as assignee of Damon Taylor.
2. The Plaintiff provided emergency medical treatment to the assignor as a result of a motor vehicle accident in which Mr. Taylor was involved.
3. The Defendant Progressive Express Insurance Company had in full force and effect at all times relevant hereto a policy of insurance issued to Frances Sealey, Mr. Taylor’s father.
4. Mr. Sealey’s policy with the Defendant provided both PIP and MEDPAY coverage.
5. Mr. Taylor was in Mr. Sealey’s vehicle at the time of the collision which gives rise to this lawsuit.
6. Mr. Taylor owned a 1993 GMC Jimmy at the time of the accident.
7. Upon being placed on Notice of the Loss on October 2, 2002, the Defendant issued a reservation of rights letter to Mr. Taylor, indicating that the claim was undergoing investigation.
8. A lawsuit was filed by the Plaintiff against the Defendant on December 27, 2002, seeking recovery of PIP and med-pay benefits for Mr. Taylor under Mr. Sealey’s policy.
9. The Defendant rescinded its Reservation of Rights on January 16, 2003 and on that date issued payment for 20% of the outstanding charges due to Rural Metro Ambulance under the portion of Mr. Sealey’s policy providing medical payments coverage.
10. The Defendant moved for Final Summary Judgment on the grounds that the payment by the Defendant under the med-pay portion of its policy did not constitute a confession of judgment as the lawsuit was filed for PIP benefits. Further, the Defendant argued that even if that were the case payment was made prior to the Defendant having actual knowledge of the lawsuit and therefore did not constitute a confession of judgment.
Having heard the arguments of counsel and being otherwise fully advised in the premises, it is hereby,ORDERED AND ADJUDGED:
Defendant’s Motion for Final Summary Judgment is DENIED. The Court finds that the complaint filed by the Plaintiff in this matter sufficiently encompassed a claim for med-pay benefits and requested relief pursuant to Florida Statutes 627.428. Further, this court takes Judicial notice that this lawsuit was filed on December 27, 2002. There is no dispute that the Defendant issued a check under the med-pay portion of its policy in favor of Rural Metro Ambulance on January 16th, 2004. Counsel for the Defendant can cite no case law that stands for the proposition that the Defendant does not confess judgment by making a payment after suit is filed, but prior to the Defendant having actual knowledge of the same. The payment by the Defendant in this circumstance constitutes a confession of judgment.
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