11 Fla. L. Weekly Supp. 934a
Insurance — Personal injury protection — Attorney’s fees — Confession of judgment — Where medical provider filed suit for PIP benefits and declaratory relief and, after production of PIP payout log in response to discovery, discovered it had mistakenly filed suit for benefits that had already been timely paid and voluntarily dismissed count alleging nonpayment of benefits, production of PIP payout log was not confession of judgment entitling provider to award of attorney’s fees and costs — Declaratory judgments — Standing — Assignment — Provider/assignee that has been paid in full no longer retains rights under assignment and lacks standing to seek declaratory relief
TALLAHASSEE MRI, P.A. (BROOKS, ANGULEAN), Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03002632 CONO 70. July 8, 2004. Steven P. Deluca, Judge. Counsel: Matt Hellman, Matt Hellman, P.A., Plantation. Andrew Weinstein.
ORDER DISMISSING COUNT I AND DENYING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come before the Court upon Plaintiff’s Motion to Determine Entitlement to Attorney’s Fees and Costs the Court hereby makes the following findings:
This is an action to enforce PIP benefits and for Declaratory Relief. The Plaintiff medical provider was paid in full prior to filing this lawsuit but filed suit more than six months later. An explanation of benefits was attached to the payments made to Plaintiff. After filing, Plaintiff received a PIP payout log in response to its request for production and as a result voluntarily dismissed Count II for payment of benefits because payments were timely made. Plaintiff is seeking declaratory judgment that the production of the PIP payout log is a confession of judgment and that it is entitled to attorney’s fees and costs.
The rights under an Assignment of Benefits for payments and to enforce those payments are extinguished when all indebtedness has been satisfied. Trak Microwave Corp., v. Madaris Management, Inc., 236 So. 2d 189, 193-194 (Fla. 4th DCA 1970). Accordingly, if a medical provider has been paid in full it no longer retains rights under that assignment and lacks standing to seek declaratory relief under Florida Statute section 627.736(6)(d).
To allow recovery of statutory attorney fees would be to establish a pattern where a Plaintiff medical provider would not honor its obligation for adequate record keeping. The medical provider would be able to send a letter maintaining if the insurance company doesn’t honor the request within a certain period of time they are subject to attorney’s fees, even though they shouldn’t be. The Court is troubled to create obligations on behalf of, an entity, the insurance industry, when a Plaintiff is requesting information already in its possession at the time the debt was discharged in its entirety. It’s almost like “got you,” creating a cause of action where one didn’t exist.
Contrary to Plaintiff’s argument, this ruling is not at odds with the Florida Supreme Court’s holding in Wollard v. Lloyd’s and Companies of Lloyd’s, where payment after suit is the equivalent of a confession of judgment.
[T]he statutory obligation for attorney’s fees cannot be avoided simply by paying the policy proceeds after suit is filed . . . . When the insurance company has agreed to settle a disputed case, it has, in effect, declined to defend its position pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured.
439 So. 2d 217 (Fla. 1983) (emphasis supplied) (internal citations omitted). Nor is this Opinion at odds with Ivey v. Allstate Insurance Co., where when the Defendant insurance company realized its error and paid the claim after suit was filed, the Plaintiff was entitled to attorney’s fees and costs. 775 So. 2d 679 (Fla. 2000). Here, the Plaintiff voluntarily dismissed Count II alleging non-payment of benefits after realizing its mistake in filing as the Defendant insurance company had timely paid those benefits more than six months before suit was filed and Defendant has not declined to defend its position. The production of the PIP payout sheet in response to discovery is not a confession of judgment in and of itself.
IT IS HEREBY ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Attorney’s Fees and Costs is DENIED.
2. Count I for Declaratory Relief is DISMISSED with prejudice on a theory of estoppel;
it is HEREBY FURTHER ADJUDGED that
3. Plaintiff TALLAHASSEE MRI, P.A., (BROOKS, ANGULEAN) takes nothing by this action and that Defendant PROGRESSIVE AUTO PRO INSURANCE COMPANY shall go hence without day. This Court retains jurisdiction for the purposes of determining Defendant’s Motions to tax attorney’s fees and costs and sanctions.
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