18 Fla. L. Weekly Supp. 20a
Online Reference: FLWSUPP 1801MROD
Insurance — Personal injury protection — Final judgment is reversed where neither judgment nor record evidences manner in which trial court calculated amounts awarded in benefits and interest, and order does not specify pre-judgment interest rate and date on which interest began to accrue — Interest — While section 55.03 requires court to use interest rate in year medical provider submitted claim to establish post-judgment interest rate, statute is not applicable to pre-judgment interest rate, which is fluctuating rate recalculated annually pursuant to section 55.01
STAND-UP MRI OF MIAMI, INC., a/a/o Martha Rodriguez, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-531 AP. L.C. Case No. 07-24983 SP 25. September 22, 2010. An appeal from the County Court in and for Miami-Dade County, Judge Lawrence D. King. Counsel: George David, for Appellant. Michael Neimand, for Appellee.
(Before LEESFIELD, RODRIGUEZ, and EMAS, JJ.)
(PER CURIAM.) Appellant, Stand-Up MRI of Miami (“Stand-Up”), seeks review of the lower court’s final judgment awarding Stand-Up $870.06 in benefits and $204.41 in interest pursuant to a suit filed under the Personal Injury Protection (PIP) statute. Stand-Up asserts it was denied any opportunity to review or object to the proposed final judgment submitted to and entered by the trial court, and further asserts that the calculation of the amounts awarded by the final judgment were incorrect. We reverse because neither the final judgment nor the record evidences the manner in which the trial court calculated or determined the amounts awarded in the final judgment.
Martha Rodriguez was injured in a car accident in November 2004. Rodriguez was insured by United Auto Insurance Co. (“United”) and was treated by Stand-Up for her injuries. Ms. Rodriguez later assigned her PIP benefits to Stand-Up. In November 2007, Stand-Up filed suit against United for unpaid and overdue medical bills and penalty interest for the late payment. United answered the complaint, and asserted various affirmative defenses.
On May 6, 2008, United sent Stand-Up’s counsel a check in the amount of $1074.47. The face of the check included a notation that the check was “for full & final payment of confession of judgment for CS#07-24983SP2502/Stand Up MRI Martha Rodriguez-Gonzalez.” No letter accompanied the check. On May 20, 2008,1 United filed a confession of judgment in the amount of $870.06 for benefits and $204.41 in interest (a total of $1074.47). On May 22, 2008, Stand-Up sent a letter to United’s counsel, returning the cheek and explaining that the amount offered was incorrect. Stand-Up also filed a motion to strike the confession of judgment for the same reason.
On June 11, 2008, United filed a “Motion to Withdraw Answer and Enter Final Judgment” in favor of Stand-Up. United sought entry of a final judgment in the amount of $1074.47, the same amount previously tendered in the check sent to (and returned by) Stand-Up’s counsel. United had attached to its motion an affidavit of Monica Johnson, an adjuster with United. In the affidavit, Ms. Johnson averred that United owed Stand-Up benefits of $870.06 and penalty interest of 204.41 (for a total amount of $1074.47). Ms. Johnson’s affidavit did not set forth the manner or means by which she arrived at these amounts.
On August 25, 2008, United’s motion was scheduled to be heard on the trial court’s non-evidentiary motion calendar. Because of an apparent miscommunication regarding the time of the hearing, counsel for Stand-Up arrived thirty minutes late. By the time Stand-Up’s counsel arrived, a final judgment had already been submitted to the court. Stand-Up’s counsel had not reviewed the proposed final judgment prior to its submission to the court and had not approved the proposed amount of benefits or interest to be awarded.2 The final judgment was handwritten on a fill-in-the-blank order. It stated in pertinent part:
The Court hereby withdraws the Answer and enters Final Judgment in the amount of $870.06 in benefits and $204.41 in interest as evidenced by the affidavit of [United’s litigation claims adjuster] Monica Johnson.
(R. 58).
On September 2, 2008, Stand-Up filed a motion for rehearing and sought an evidentiary hearing. The motion for rehearing was denied on October 3, 2008 and this timely appeal followed.
The final judgment does not set forth the manner in which the trial court arrived at the amount of benefits or interest awarded. The final judgment does not set forth the interest rate for any pre-judgment interest, or the relevant date from which that interest began to run. The motion and attached affidavit also fail to include any such calculations or determinations. Because no hearing was held, and because the record contains nothing from which it can be determined how the trial court calculated the benefits or the interest amount, the case must be reversed and remanded. See, e.g., Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 215 (Fla. 1985); Cohen & Cohen, PA. v. Gerson, Preston, Robinson & Co., 24 So. 3d 805 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D128c].
Because we are remanding this case to the trial court for further proceedings, we address one additional argument raised on appeal. Pursuant to Section 627.736(4)(d), all overdue PIP payments “shall bear simple interest at the rate established under §55.03 or the rate established in the insurance contract, whichever is greater, for the year in which the payment became overdue.” Id. Since there is no agreed upon contract rate, the rate to be paid shall be calculated pursuant to Florida Statutes, section 55.03 (2003). As amended in 1997, section 55.03(3) provides that the “interest rate established at the time a judgment is obtained shall remain the same until the judgment is paid.” Fla. Stat. §55.03.
While it is clear that this provision establishes a fixed interest rate for post-judgment interest, the parties disagree over the applicability of section 55.03 to pre-judgment interest. United contends that section 55.03 requires the trial court to use a fixed rate of 7 percent (the interest rate in 2005, the year in which Stand-Up submitted its claim), to calculate both pre- and post-judgment interest. Stand-Up counters that section 55.03 applies solely to post-judgment interest and that pre-judgment interest must be calculated at a fluctuating interest rate.
The court finds that section 55.03 applies to post-judgment (but not prejudgment) interest calculations. The applicable pre-judgment statutory interest rate is that rate in effect at the time the interest accrues. Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 215 (Fla. 1985); see also Trend Coin Co. v. Honeywell, Inc., 487 So. 2d1029, 1030 (Fla. 1986); State Dept. of Transp. v. M.C.C. of Fla., Inc., 540 So. 2d 834, 835 (Fla. 1st DCA 1988). The pre-judgment interest rate is a fluctuating interest rate recalculated annually pursuant to Florida Statutes, section 55.01. Trend Coin, 487 So. 2d at 1030. Federal courts applying Florida law have also interpreted the statute to provide that pre-judgment interest rates fluctuate. See Talking Walls, Inc. v. Hartford Cas. Ins. Co., No. 1:02-cv-00041-MP-AK, 2005 WL 6011243, at *4 (N.D. Fla. July 5, 2005).
The trial court’s judgment is reversed and remanded for proceedings consistent with this opinion.
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1United initially filed its confession of judgment on May 5, 2008, but filed it under the incorrect case number on the pleading. A corrected confession was filed on May 20, 2008.
2In fact, Stand-Up had previously objected to these amounts in its motion to strike United’s confession of judgment.
