13 Fla. L. Weekly Supp. 1085b
Insurance — Personal injury protection — Declaratory judgment — Confession of judgment — Where insurer that had refused coverage on grounds that newly-purchased truck driven by insured at time of accident was not insured vehicle under policy extended coverage and paid benefits after declaratory action seeking declaration of insured’s right to coverage was filed, insurer confessed judgment and abandoned all defenses by changing position, and insured is entitled to attorney’s fees and costs
GLENN KOEHLER, Petitioner, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Respondent. County Court, 9th Judicial Circuit of Orange County. Case No. 05-SC-2973. August 10, 2006. Carolyn B. Freeman, Judge. Counsel: George Milev. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
FINAL JUDGMENT
THIS CAUSE came on to be heard on the Parties Joint Stipulation for Entry of Final Judgment, and the Court having reviewed the stipulation of the parties and having examined the Court file makes the following findings of fact and law:
1. On or about December 4, 2003, Plaintiff was involved in a motor vehicle accident while driving a 1966 Ford truck which he had acquired ownership of on December 3, 2003, one day before the accident.
2. The above referenced accident occurred on southbound I-65 in Tennessee, while Plaintiff was en-route to Florida.
3. At the time the accident occurred, Plaintiff was towing a 1988 Chevrolet S10 Blazer insured by the Defendant and owned by Plaintiff and Susan Cole.
4. As a result of the accident, Plaintiff was injured and sought treatment for his injuries upon returning to Florida.
5. Bills for Plaintiff’s treatment were submitted to the Defendant, and Defendant refused coverage for this accident. This action seeking a declaration of Plaintiff’s right to coverage under the policy was subsequently filed.
6. Defendant’s denial of coverage was based on the stated reason that “pursuant [to] Florida Statute 627.736(4)(d), PIP coverage will only apply to our insured or a resident relative of our insured outside the state of Florida if occupying the insured vehicle. As verified Glen (sic) Koehler was not in the Progressive insured vehicle, therefore PIP coverage will not apply.”
7 However, the subject insurance policy defines “covered vehicle” to include any additional vehicle on the date you become the owner if: (i) you acquire the vehicle during the policy period shown on the Declarations Page; (ii) we insure all vehicles owned by you; and (iii) no other insurance policy provides coverage for that vehicle. The policy further states that “[i]f we provide coverage for a vehicle you acquire in addition to any vehicle shown on the Declarations Page, we will provide the broadest coverage we provide for any vehicle shown on the Declarations Page. We will provide that coverage for a period of thirty (30) days after you become the owner.”
8. This action was filed on April 5, 2005, received by the Department of Financial Services on April 11, 2005, and served on the Defendant on April 13, 2005. Plaintiff extended coverage for this claim and paid benefits thereunder on or after April 13, 2005.
9. The Defendant confessed judgment by changing its position after suit was filed, providing coverage, and paying benefits under that coverage, thereby abandoning all defenses to Plaintiff’s action.
10. When an insurer decides to pay benefits after suit is filed, or, in this case provides coverage after a declaratory judgment is filed as to same, this amounts to a confession of judgment. Wollard v. Lloyd’s and Companies of Lloyd’s, 439So. 2d 217, 218 (Fla. 1983); United Automobile Insurance Company v. Zulma, 661 So.2d 947 (Fla. 4th DCA 1995).
11. Two recent cases address how an insurance company’s change of conduct is the equivalent of a confession of judgment. In O’Malley v. Nationwide Mutual Fire Ins. Co., 890 So. 2d 1163, 1164 (Fla. 4th DCA 2004), Ms. O’Malley was a defendant in a tort action. Nationwide defended her in the claim but issued a reservation of rights and filed a separate declaratory judgment action regarding coverage. While the declaratory judgment action was pending, the tort claim was resolved and Nationwide entered into an agreement with the Plaintiff. Nationwide then dismissed the declaratory judgment action involving the coverage issue. After the dismissal, O’Malley moved for attorney’s fees and costs pursuant to F.S. Section 627.428. The trial court denied the fee claim and held that no money had been paid and therefore there had been no judgment entered. The District Court of Appeal reversed the trial court and held that by resolving the tort claim, Nationwide “had provided the insured precisely what Nationwide was contending the insured was not entitled to in the declaratory judgment action.” The Court then cited to Wollard, supra, finding that Nationwide’s change of conduct in the declaratory judgment action constituted a confession of judgment. The Court held that Nationwide’s dismissal of the action “was the functional equivalent of a confession of judgment or verdict in favor of the insured, entitling her to attorney’s fees under ch. 627.428.” See also, The Traveler’s Indemnity Ins. Co. of Ill. v. Meadows MRI, 2005 Fla. App. LEXIS 5070 (Fla. 4th DCA 2005) (explaining the policy behind the award of sec. 627.428 fees after an insurance company effectively confesses to judgment).
12. The Defendant’s change of conduct and provision of coverage after the filing of this action resulted in a confession of judgment.
WHEREFORE, it is hereby ORDERED AND ADJUDGED:
1. That Plaintiff’s Motion for Entry of Final Judgment is hereby GRANTED.
2. The Defendant confessed judgment by changing its position after suit was filed, providing coverage, and paying benefits under that coverage, thereby abandoning all defenses to Plaintiff’s action, and therefore the Plaintiff is entitled to reasonable attorney fees and costs pursuant to §627.428, Fla. Stat (2004).
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