16 Fla. L. Weekly Supp. 762b
Online Reference: FLWSUPP 168BOUGH
Insurance — Personal injury protection — Confession of judgment — Where medical provider did not list March 4, 2004, date of service in first amended complaint, provider later listed date in bill of particulars, and provider subsequently filed second amended complaint that omitted date, second amended complaint superseded earlier pleading, and payment of March 4, 2004, bill did not constitute confession of judgment
FINNIE CHIROPRACTIC CENTER, An assignee of Suzy Bough, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 06-SC-6019. May 26, 2009. Antoinette Plogstedt, Judge. Counsel: George Milev, Adams & Diaco, Orlando. Lee Jacobson, Law Offices of Michael B. Brehne, P.A., Maitland.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on April 6, 2009, on Plaintiff’s Motion for Partial Summary Judgment for date of service March 4, 2004, the Court having heard arguments by counsels for Plaintiff and Defendant and otherwise being fully advised in the premises, hereby:
ORDERS AND ADJUDGES as follows:
1. This is a PIP lawsuit based on alleged breach of automobile insurance contract.
2. Plaintiff filed the current lawsuit as alleged assignee of Suzy Bough.
3. Plaintiff filed the lawsuit in Seminole County, Florida on December 2, 2003 and subsequently the Court consolidated three different lawsuits based on separate dates of service into lawsuit 03-SC-5655.
4. None of the original complaints filed in the lawsuits in Seminole County listed date of service March 4, 2004.
5. On August 29, 2005 the Plaintiff filed its Motion for Leave to Amend the Complaint in order to add additional dates of service.
6. The Amended Complaint did not list the March 4, 2004, date of service to be at issue in the lawsuit.
7. On May 3, 2006, the Court granted Plaintiff’s Motion for Leave to Amend the Complaint.
8. Two days later, on May 5, 2006, Plaintiff allegedly served its Second Bill of Particulars without seeking leave of Court adding additional dates of service and listing March 4, 2004, date of service to be at issue. However, no such pleading has been docketed.
9. On August 16, 2006, Plaintiff filed its Motion for Leave to File Second Amended Complaint in order to add more dates of service.
10. The proposed Second Amended Complaint did not list the March 4, 2004, date of service to be at issue in the current lawsuit and did not state an intent to preserve portions of any prior pleadings.
11. In December of 2006 Defendant paid Plaintiff’s bill for the date of service March 4, 2004.
12. Plaintiff argues that the date of service March 4, 2004, was listed chronologically with numerous other dates of service in a demand letter pursuant to F.S. 627.736(10). Defendant responded, “We are upholding our prior payment decisions for dates of service 1/19/04-1/12/05.” Plaintiff then amended its Complaint to include date of service 1/19/04-1/12/05, and Plaintiff argues that a typographical error was made for date of service 3/4/04 and instead the Complaint listed, out of chronological order, date of service 3/4/03. Plaintiff argues that essentially the years of the date of service contained the typographical/scrivener’s error.
13. Plaintiff argues that any confusion was quickly removed when it filed an Amended Bill of Particulars that listed date of service 3/4/04. Plaintiff also argues that Defendant was deposed regarding the failure to make payment for date of service 3/4/04 and Defendant’s adjuster testified that was “overlooked.” Plaintiff argues that Defendant also knew that there was never a bill submitted for date of service 3/4/03. It wasn’t until after discovery was conducted that defendant made payment directly to the Plaintiff, bypassing Plaintiff’s counsel. Plaintiff argues this is a confession of judgment by virtue of the payment for date of service 3/4/04 after Defendant’s receipt of the demand letter, denial of payment and specific identification in the Amended Bill of Particulars listing 3/4/04 as a date of service that was at issue in this lawsuit.
14. After several cancellations on Plaintiff’s hearing on its Motion for Leave to File a Second Amended Complaint, the Court granted Plaintiff’s Motion for Leave on April 25, 2007 ruling that Plaintiff’s Second Amended Complaint is deemed filed as of August 16, 2006.
15. “A supplemental pleading supercedes an earlier pleading unless it expresses an intent to preserve portions of the earlier pleading.” State Farm Fire and Cas. Co. v. Tippett, 864 So. 2d 31 (Fla. 4th DCA 2003).
16. Neither Plaintiff’s First nor Second Amended Complaint listed the March 4, 2004 bill/date of service to be at issue.
17. Thus the payment of said bill by Defendant in December of 2006 did not constitute a confession of judgment.
WHEREFORE Plaintiff’s Motion for Partial Summary Judgment is hereby DENIED.
