13 Fla. L. Weekly Supp. 160b
Insurance — Personal injury protection — Complaint — Amendment — Relation back — Amended complaint changing name of plaintiff medical provider five days after insurer paid claim to new plaintiff relates back to date of original complaint where insurer knew or should have known of existence and involvement of new plaintiff based on allegations of original complaint and that original plaintiff and new plaintiff have identity of interest that does not prejudice insurer — Attorney’s fees — New plaintiff is entitled to award of attorney’s fees where amended complaint naming new plaintiff relates back to date of original complaint and, therefore, insurer’s payment of claim to new plaintiff is equivalent to confession of judgment since it was made after suit was filed — Plaintiff is also entitled to attorney’s fees for litigating issue of entitlement to fees
KISSIMMEE OPEN MRI, as assignee of YALENA LUTANDO, Plaintiff(s), vs. ALLSTATE INDEMNITY COMPANY, Defendant(s). County Court, 9th Judicial Circuit in and for Orange County. Case No. 2001-CC-4096-O. September 1, 2005. Jerry L. Brewer, Judge. Counsel: Micheal Tierney, Michael Tierney, P.A., Winter Park. Yim Mah, Orlando.
FINAL ORDER ON PLAINTIFF’S MOTION TO DEEMAMENDED COMPLAINT FILED AS OF ORIGINALDATE OF FILING SUIT AND TO DETERMINE PLAINTIFF’S ENTITLEMENT TO FEES AND COSTS
This cause came on for consideration by the undersigned on the Plaintiff’s Motion to Deem Amended Complaint filed as of Original Date of Filing Suit and to Determine Plaintiff’s Entitlement to Fees and Costs, a hearing was held July 29, 2005, and the Court having heard argument and considered the motions as well as case law submitted by each party, it is hereby ordered and adjudged that:
FACTS & PROCEDURAL STATUS
On March 23, 2001, Dynamic Imaging MRI, Inc. (“Dynamic”), brought the instant action against Allstate Indemnity Co. (“Defendant”) for the payment for services provided by Plaintiff to Lutando. (Compl. 1.) On May 2, 2001, Defendant paid Plaintiff’s bill. (Pl.’s Mot. to Deem Am. Compl. Filed as of Original Date of Filing Suit, and to Determine Pl.’s Entitlement to Fees and Costs, 2.) Thereafter, on May 7, 2001, Plaintiff filed a motion for leave to amend the complaint, along with a proposed amended complaint. (Pl.’s Mot. for Leave to Amend Compl.; Pl.’s First Am. Compl.) The amended complaint sought to change the name of the plaintiff to Kissimmee Open MRI. (Pl.’s Mot. For Leave To Amend Compl.; Pl.’s First Am. Compl., 1.) On May 10, 2001, Defendant filed an answer to the complaint, asserting as an affirmative defense that the plaintiff, Dynamic, did not have a valid assignment. (Def.’s Answer to Compl. 1).
On February 21, 2002, the Court granted Plaintiff’s motion to amend the complaint to change the name of the plaintiff. (Order Granting Pl.’s Mot. For Leave to Amend Compl.) The amended complaint contained the same allegations as the original complaint with the only difference being that in the amended complaint the named plaintiff was Kissimmee Open MRI, instead of Dynamic. (Compl. 1; Pl.’s First Am. Compl. 1.)
Defendant refused to pay Plaintiff attorney’s fees and costs based on the fact that the amended complaint naming the true Plaintiff was not filed until after Defendant had paid Plaintiff’s claim. (Pl.’s Mot. to Deem Am. Compl. Filed as of Original Date of Filing Suit, and to Determine Pl.’s Entitlement to Fees and Costs, 2.) Plaintiff filed a motion asking the Court to deem that the amended complaint relates back to the filing of the original complaint. (Id.) The motion further seeks a determination of whether Plaintiff is entitled to attorney’s fees and costs because Defendant paid the medical bill after suit was filed. (Id.) On July 29, 2005, the Court conducted a hearing on the motion.
ISSUES
I. Does the amended complaint relate back to the date that the original complaint was filed?
II. If so, is Plaintiff entitled to attorney’s fees and costs?
CONCLUSION
I. The amended complaint should relate back to the date the original complaint was filed because it appears that Defendant knew or should have known of the existence and involvement of Plaintiff and that Plaintiff and Dynamic have an identity of interest which does not prejudice Defendant.
II. The Plaintiff may recover attorney’s fees for both litigating the underlying action and the entitlement to fees issue.
DISCUSSION
I. Relation Back
Plaintiff maintains that the amended complaint should relate back to the date that the original complaint was filed. (Id.) Plaintiff contends that the amended complaint merely served to correct a scrivener’s error in the caption of the complaint, and as such, the amended complaint relates back to the date of the original pleading. (Id. at 3.) Based on the record, it does not appear that Defendant filed a written response to Plaintiff’s motion.
Rule 1.190(c) of the Florida Rules of Civil Procedure provides, “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” The relation back doctrine may be applied to an amended complaint which adds a new party to the case, if the party “ ‘is sufficiently related to the original party such that the addition would not prejudice the new party.’ ” Darden v. Beverly Health & Rehab., 763 So. 2d 542, 542-43 (Fla. 5th DCA 2000) (quoting Schwartz ex rel. Schwartz v. Wilt Chamberlain’s of Boca Raton, Ltd., 725 So. 2d 451, 453 (Fla. 4th DCA 1999)). An amended complaint which adds a new party defendant relates back to the original filing date if “ ‘the new and former parties have an identity of interest which does not prejudice the opponent.’ ” Darden, 763 So. 2d at 543 (quoting Kozich v. Shahady, 702 So. 2d 1289, 1291 (Fla. 4th DCA 1997)). Courts which have considered whether an amendment adding a new plaintiff relates back to the original filing have determined that “the touchstone of the identity of interest requirement ‘is whether the defendant knew or should have known of the existence and involvement of the new plaintiff.” Roger Dean Chevrolet, Inc. v. Lashley, 580 So. 2d 171, 173 (Fla. 4th DCA 1991) (quoting R.A. Jones & Sons v. Holman, 470 So. 2d 60, 68 (Fla. 3d DCA 1985)).
Applying these rules to the instant case, it appears that the amended complaint should relate back to the date of the filing of the original complaint. The amended complaint did nothing more than change the name of the plaintiff. Kissimmee Open MRI and Dynamic have the same director of operations and are owned by Lee D. Effenson. (Aff. of Healthcare Provider, ¶¶ 2, 5) Adding Kissimmee Open MRI as the plaintiff did not introduce a new cause of action nor did it substantially change the cause of action. More importantly, however, it would appear that Defendant either knew or should have known of the existence and involvement of Kissimmee Open MRI because the medical charges related to the treatment of its insured, Lutando, who was named in the complaint. Furthermore, the complaint and amended complaint reference the same claim number, the same service date, and the same medical cost. Additionally, Defendant paid the claim approximately a month and a half after the suit was initiated. As such, it would not seem that permitting the amended complaint to relate back to the filing of the original complaint would prejudice Defendant because it appears Defendant likely knew or should have known that Kissimmee Open MRI was the proper plaintiff based on the allegations in the original complaint.
II. Entitlement to Attorney’s Fees and Costs
Having determined that it appears that the amended complaint should relate back to the date of the filing of the original complaint, the Court must consider whether Plaintiff is entitled to attorney’s fees and costs incurred litigating the underlying action and to attorney’s fees incurred litigating the issue of entitlement to attorney’s fees. Plaintiff maintains that it is entitled to attorney’s fees incurred defending the underlying action and those incurred litigating its entitlement claim. (Pl.’s Mot. to Deem Am. Compl. Filed as of Original Date of Filing Suit, and to Determine Pl.’s Entitlement to Fees and Costs, 4-6). The record does not indicate that Defendant responded to Plaintiff’s assertions.
Section 627.428 of the Florida Statutes requires the insurer to pay the insured’s reasonable attorney’s fee for prosecuting the suit when the insured receives a judgment against the insurer. § 627.428(1), Fla. Stat. (2004). The meaning of the term “judgment” as found in Section 627.428(a) has been deemed to include the resolution of a case in favor of the insured via a settlement with the insurer. See Wollard v. Lloyd’s and Cos. of Lloyd’s, 439 So. 2d 217, 218 (Fla. 1983). In Wollard, the court held that “the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured.” Id. at 218. In so ruling, the Wollard court reasoned:
The statute must be construed to authorize the award of an attorney’s fee to an insured or beneficiary under a policy or contract of insurance who brings suit against the insurer after loss is payable even though technically no judgment for the loss claimed is thereafter entered favorable to the insured or beneficiary due to the insurer voluntarily paying the loss before such judgment can be rendered. After all, such voluntary payment is the equivalent of a confession of judgment against it.
Id. (quoting Cincinnati Ins. Co. v. Palmer, 297 So. 2d 96, 99 (Fla. 4th DCA 1974) (emphasis added) (holding that the insured was entitled to recover attorney’s fees after insurer paid insured after suit was filed, but before case was tried)).
In the instant action, Dynamic filed suit to recover fees for services rendered to Lutando, the insured. Approximately one month after the suit was initiated, Defendant paid Kissimmee Open MRI its fees for the services rendered to Lutando. As discussed supra, it appears that the amended complaint, which Plaintiff filed five days after Defendant paid Kissimmee Open MRI, may relate back to the original date of the filing of the complaint. As such, the voluntary payment of the fees to Kissimmee Open MRI is equivalent to a confession of judgment because it was made after suit was filed. Accordingly, Plaintiff appears to be entitled to an award of attorney’s fees for litigating the underlying action.
The remaining issue is whether Plaintiff may receive attorney’s fees incurred litigating the issue of entitlement to attorney’s fees. In State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993), the court held that “attorney’s fees may properly be awarded under section 627.428 for litigating the issue of entitlement to attorney’s fees.” Accordingly, the Court finds that Plaintiff is entitled to attorney’s fees incurred litigating the underlying action because the amended complaint relates back. Plaintiff should be able to recover attorney’s fees incurred litigating the issue of entitlement to attorney’s fees.
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