13 Fla. L. Weekly Supp. 1062b
Insurance — Personal injury protection — Where de facto confession of judgment occurred when insurer paid claim in full after suit was filed but before insurer was served in case, no justiciable issue of law or fact on merits of case existed for determination when cross-motions for summary judgment regarding demand letter issue were filed and summary judgment was entered in favor of medical provider — Remand with instructions to dismiss and reserve jurisdiction to address attorney’s fees and cost issues
ALLSTATE INSURANCE COMPANY, Appellant, vs. ALL CARE MEDICAL & REHAB CENTER, INC. (a/a/o Romulo Fernandez); and ALL CARE MEDICAL & REHAB CENTER, INC. (a/a/o Ana Maria Fernandez), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Consolidated Case Nos. 05-047 & 05-048 AP. L.T. 03-24250 SP23 & L.T. 03-24251 SP23. August 15, 2006. An appeal from the County Court for Miami-Dade County, Stein, Linda Singer. Counsel: Amy Cohen & Jacqueline G. Emanuel, for Appellant. David S. Kuczenski & Marlene S. Reiss, for Appellee.
(Before BAILEY, BROWN, and GLAZER, JJ.)
(PER CURIAM.) This matter arises out of an automobile accident on December 20, 2002 which resulted in injuries to Romulo and Ana Fernandez. Mr. and Mrs. Fernandez assigned their claims to All Care Medical & Rehab Center, Inc. (“All Care”). Demand letters were sent by All Care to Allstate on September 9, 2003. On October 31, 2003, All Care filed suit against Allstate. The Department of Financial Services was served by All Care on November 7, 2003. The Department of Financial Services served Allstate by certified mail on November 10, 2003.
Allstate paid the claims in full on November 5, 2003. Allstate acknowledges that it is the date of filing the lawsuit, not the date of service, which determines whether payment is made prior to or after suit is filed. Payment triggers the provider’s entitlement to attorney fees.
All Care filed its motion for summary judgment arguing post-suit payment was a confession of judgment, entitling it to fees and costs. Allstate filed its own motion for summary judgment based on issues involving the demand letter and conditions precedent.
While All Care’s Motion for Summary Judgment was granted, Allstate’s was denied. Judgment in the amount of $0.00 against Allstate was entered based on payment in full having been tendered and accepted after the lawsuit was filed. The trial court found entitlement to fees and costs and reserved jurisdiction for the determination of the amount.
All Care admitted, and Allstate acknowledged, that payment in full was made on this claim on November 5, 2003, before Allstate was even served in the case. Apparently, both plaintiff and defendant below failed to advise their attorneys of this fact.
By the time the summary judgment motions were heard, because payment had been made over a year earlier, there was no actual controversy for the court to resolve.
In the similar case of United Services Automobile Assoc. v. Affiliated Health Care, 12 Fla. L. Weekly Supp. 327a (Fla. 11th Cir. Ct. Jan. 11, 2005) USAA paid the outstanding medical bills eight days after the PIP suit was filed. As stated by Judge Firtel in that opinion;
We affirm concluding that a confession of judgment occurred below prior to the lower court entering the (summary) judgment above. See Wollard v. Lloyd’s & Co. of Lloyd’s, 439 So.2d 217, 218 (voluntary payment by an insurer to insured is equivalent to a confession of judgment); Magnetic Imaging Systems I, Ltd. v. Prudential Property & Cas. Ins. Co., 847 So.2d 987, 989 (Fla. 3d DCA 2003) (voluntary payment by an insurer to medical provider is settlement equivalent to a confession of judgment). . . .It seems that the litigation went on without purpose since the medical bills that were the subject of the PIP suit were already paid so that the proverbial situation of one hand not knowing what the other was doing propelled this case. United Services Automobile Assoc. 12 Fla. L. Weekly Supp. 327a.
Generally, a case that has been rendered moot will be dismissed. See Godwin v. State, 593 So. 2d 211 (Fla. 1992).
No justiciable issue of law or fact existed for determination at the time the motions to dismiss and cross-motions for summary judgment were filed. A de facto confession of judgment by payment had occurred. Seven days after this case was filed, the only remaining issue which could be placed before the court was the entitlement and amount of attorney fees, which was not the subject of the summary judgment motions on appeal. Continued litigation on the merits for the next year was pointless in light of the payment. The issue was attorney fees and costs.
Notwithstanding our determination that resolution of the central issue became moot upon payment, we remand so that the trial court may be called upon to weigh the extent to which attorney’s fees should be awarded. In seeking to avoid a fee award, Allstate may present all grounds it believes would deny All Care’s entitlement to attorney fees.
Therefore, the Final Summary Judgment is reversed and remanded with instructions to the lower court to dismiss and reserve jurisdiction to address attorney fees and cost issues.
* * *
