24 Fla. L. Weekly Supp. 746b
Online Reference: FLWSUPP 2409HIMMInsurance — Personal injury protection — Attorney’s fees — Insurer’s post-suit payment of claim operates as confession of judgment that entitles medical provider to attorney’s fees under section 627.428(1) — No merit to insurer’s argument that payment does not operate as confession of judgment because provider did not comply presuit with insurer’s demand that it provide signed affidavit attesting as to when provider, which initially sent claim to wrong insurance carrier based on misinformation supplied by insured, first obtained information to submit bill to correct insurer — Insurer has waived right to claim lack of cooperation by provider where insurer did not demand additional information under section 627.736(6)(b), did not allege affirmative defenses of lack of cooperation or unclean hands and did not request affidavit after suit was filed
MULTI CARE MEDICAL, LLC as assignee of Jerome Himmelfarb, Plaintiff, vs. ENTERPRISE LEASING COMPANY OF FLORIDA, LLC, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-001300 CONO 71. October 10, 2016. Louis H. Schiff, Judge. Counsel: Cris Evan Boyar, for Plaintiff. William J. McFrlane III, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORCONFESSION OF JUDGMENT, ENTRY OF FINALJUDGMENT AND DETERMINATION THEPLAINTIFF IS ENTITLED TO FEES AND COSTS
THIS CAUSE came before the court on August 31, 2016, on Plaintiff’s Motion for Confession of Judgment, entry of Final Judgment, and determination the Plaintiff is entitled to fees and costs, and the Court having heard the arguments of counsel, reviewed the file, reviewed the affidavits, and being otherwise fully advised on the premises makes the following findings of facts and conclusions of law:
FACTS OF THE CASE
The Plaintiff filed suit for breach of contract as a result of the Defendant’s failure to Plaintiff the Plaintiff’s medical bills. The Plaintiff is a medical provider that provided services to Jerome Himmelfarb who was injured in a car crash. Mr. Himmelfarb assigned his rights and benefits to the Plaintiff. The Plaintiff alleged in the amended complaint the Plaintiff’s bills were timely submitted to the Defendant and that all conditions precedents were satisfied, including but not limited to, that the bills were timely submitted to the Defendant.
On April 1, 2016, the Defendant filed an answer and two affirmative defense as opposed to paying the claim. The answer included only a general denial that the conditions precedent were satisfied. The affirmative defenses were the medical provider failed to timely submit their medical bills as required by Fla. Stat. §627.736(5)(c) and “As a second affirmative defense, the Defendant pleads that Plaintiff failed to submit a properly completed demand letter in violation of 627.736(10). Specifically, the bills which are the subject of the purported demand letter had not been properly submitted to the Defendant, therefore had not yet become overdue for payment per the statute.” The Defendant did not allege any other defenses such as lack of cooperation.
On May 23, 2016, the Plaintiff moved for Summary Judgment as to the late billing defense. On June 21, 2016, the Defendant paid the Plaintiff’s bill for PIP benefits for the dates of service at issue. However, the Defendant contested the Plaintiff’s entitlement to fees and costs.
On 6/22/16 the Plaintiff filed the instant motion seeking an entitlement to fees and costs based on the confession of judgment and an entry of final judgment.
DEFENDANT’S ARGUMENT
The Defendant argues it did not confess judgment because the Defendant’s adjuster verbally requested the Plaintiff to provide an affidavit attesting to when the Plaintiff first received the Defendant’s information before suit was filed and this affidavit was provided after suit was filed in support of the Plaintiff’s motion for Summary Judgment. The Defendant argues had it received this affidavit before suit was filed it would have issued payment and the Plaintiff’s suit was not a catalyst for payment.UNDISPUTED FACTS
It is undisputed the Plaintiff first billed GEICO because the patient prepared an intake sheet reflecting GEICO is the correct carrier. GEICO, after receiving the Plaintiff’s bills denied coverage. The Defendant does not dispute that the Plaintiff timely billed GEICO based upon information provided by Mr. Himmelfarb. Thereafter, the Plaintiff billed the Defendant. The Defendant does not dispute the Plaintiff timely billed the Defendant after learning the Defendant was the correct carrier to submit medical bills.
CONCLUSIONS OF LAWTHE PLAINTIFF IS ENTITLED TOATTORNEYS FEES AND COSTS
Fla. Stat. § 627.428(1) states:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
The statute clearly provides that attorney’s fees shall be pronounced against an insurer when judgment is rendered in favor of any named or omnibus insured. Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983). Additionally, Fla. Stat. 57.041(1) states in part: The party recovering judgment shall recover all of his or her legal costs and charges which shall be included in the final judgment.
Once an insurance company has agreed to settle a disputed case, it has in effect, declined to defend its position in the pending suit. Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983); Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Mercury Ins. Co. of Fla. v. Cooper, 919 So. 2d 491 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2648a] (Wells, J., specifically concurring; Shepherd, J., dissenting); cf. Basik Exports & Imports, Inc. v. Preferred Nat’l Ins. Co., 911 So. 2d 291 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2359a].
Payment of the claim is the functional equivalent of a confession of judgment or a verdict in favor of the insured. Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So. 2d 217, 218 (Fla. 1983). Florida law states that it is the insurer’s unilateral decision to settle an insurance case which triggers the insured’s entitlement to attorney fees under the statute. Mercury Ins. Co. of Fla. v. Cooper, 919 So. 2d 491, 493 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2648a]. The Defendants could have avoided triggering §627.428(1) by simply refusing to settle the claim or by denying coverage under the policy. Id. at 493. However, by paying Plaintiff’s claim, Defendants elected to “chose the precise legal conduct which has been held, under Florida law, to trigger an insured’s entitlement to attorney’s fees and costs under section 627.428(1).” Id. at 493.
In this case, Defendant confessed judgment by making payment to Plaintiff on June 21, 2016. Therefore, the Plaintiff is the prevailing party on the significant issue of this case and Plaintiff is entitled to recover his reasonable attorney’s fees and costs.Defendant’s Payment Operates as a Confession of Judgmentand has Waived the Right to Claim Lack of Cooperation
The Defendant argues its payment does not operate as a confession of judgment because the Defendant demanded, before suit was filed, the Plaintiff to provide a signed affidavit attesting as to when the Plaintiff first received the Defendant’s information to submit the bills. Under Fla. Statute §627.736(c)(1) it states
If the insured fails to furnish the provider with the correct name and address of the insured’s personal injury protection insurer, the provider has 35 days from the date the provider obtains the correct information to furnish the insurer with a statement of the charges. The insurer is not required to pay for such charges unless the provider includes with the statement documentary evidence that was provided by the insured during the 35-day period demonstrating that the provider reasonably relied on erroneous information from the insured and either:
a. A denial letter from the incorrect insurer, or
b. Proof of mailing, which may include an affidavit under penalty of perjury, reflecting timely mailing to the incorrect address or insurer.
As stated above, the Plaintiff originally timely billed GEICO and then when it learned the Defendant was the correct carrier to bill it timely billed the Defendant. This is undisputed. The Defendant has added a requirement that the Plaintiff provide the Defendant with a signed affidavit as to when the Plaintiff learned the Defendant was the correct carrier to bill for the services it provided. This is not a requirement under Florida law.
Therefore, this Court disagrees with the Defendant’s argument and rules that the facts as recited above supports this Court’s ruling that their conduct was unreasonable. A condition precedent to an award of attorney’s fees under the confession of judgment rule is whether the insurance company unreasonably withheld payment under the insurance policy. Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So. 2d 217, 219 (Fla. 1983) (footnote 2); Clifton v. United Cas. Ins. Co. of Am., 31 So. 3d 826 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D364e]; See, Beverly v. State Fla. Ins. Co., 50 So. 3d 628 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2373b] and Hill v. State Farm Fla. Ins. Co., 35 So. 3d 956 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D1041a].
In Magnetic Imaging v. Prudential, 847 So.2d 987 (Fla. 3d DCA 2003) the court opined:
As the Florida Supreme Court has explained, current PIP Law (as evidenced by sections 627.728(1) and 627.736(8)) is outcome oriented. If a dispute arises between an insurer and an insured, and judgment is entered in favor of the insured, he or she is entitled to attorney’s fees.
Accordingly, the confession of judgment rule operates to “penalize an insurance company for wrongfully causing it’s insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.” First Floridian Auto & Home Ins. Co. v. Myrick, 969 So. 2d 1121, 1121 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2672a] (quoting Bassette v. Standard Fire Ins. Co., 803 So. 2d 744, 746 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1670b]).
The Defendant’s withholding payment based on requests for an affidavit that is not required under the policy or statute is wrongful. See, Tampa Chiro Center, Inc. v. State Farm, 141 So. 3d 1256 (5th DCA 2014) [39 Fla. L. Weekly D1441a] (Fees awarded to Plaintiff when Defendant unreasonably withheld payment based on its contention that the scope of its document request was proper under §627.736(6)(b)) and Leber v. Citizens, 24 Fla. L. Weekly Supp. 151a (Fla. Orange County Court 2016).
In addition, the burden is on the Defendant to verify claims and they cannot shift the burden to the Plaintiff. See, Palmer v. Fortune Ins. Co., 776 So. 2d 1019 (5th DCA 2001) [26 Fla. L. Weekly D278a] (Fortune attempted to shift the burden to Palmer by stating there was incorrect information in the documents submitted and that counsel “dragged his heels” in furnishing the police report. Fortune should have paid the claim or denied it — Fortune did neither, it simply continued its “investigation”).
The Defendant sent the Plaintiff a letter on September 25, 2015, denying the claim alleging the Plaintiff’s bills were untimely. The letter did not seek any specific information or the reason why the Plaintiff’s bills were timely or request any signed affidavit attesting to when the Plaintiff learned the Defendant was the proper carrier to bill. The Defendant did not make a request based on F.S. §627.736(6)(b) which states:
If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later.
Had the Defendant made a request under this statute it may have tolled the time for the Defendant to issue payment. Additionally, the Defendant could have denied the Plaintiff’s allegation in the Complaint that all conditions precedent were satisfied with a specific denial as required by Rule 1.120(c) of the Fla. R. of Civ. Proced. The failure to provide specificity in the denial of the allegation that conditions precedent have been complied with results in relieving the plaintiff of its burden of proof relative to the issue. Cooke vs. Ins. Co. of No. Am., 652 So.2d 1154 (Fla. 2nd DCA 1995). Lucante vs. Kyker, 122 So.3d 407 (Fla. 1st DCA 2013); Oliveros vs. Adventist Health System/Sunbelt, Inc., 45 So.3d 873 (Fla. 2nd DCA 2010); Paulk vs. Peyton, 648 So.2d 772 (Fla. 1st DCA 1994); Buck Lake Alliance, Inc. v. Bd. of Cnty. Comm’rs of Leon Cnty., 765 So. 2d 124, 128 (Fla. 1st DCA 2000).
The Defendant did not include an affirmative defense of lack of cooperation or unclean hands. The Defendant did not immediately ask the court to stay the case so that it can request the above mentioned affidavit.
There is no record evidence the Defendant ever requested the affidavit from the Plaintiff after suit was filed. The Defendant did not ask to place the money in the court’s register to avoid the confession argument. Had the Defendant filed a defense of lack of cooperation as a result of the Plaintiff’s alleged failure to comply with the request for a signed affidavit the Plaintiff could have filed a reply. Therefore, the court finds the Defendant has waived the right to make this allegation at the time of the hearing. See USAA Casualty Insurance v. Emergency Physicians, 41 Fla. L. Weekly D1438a (Fla. 5th DCA 2016).
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion be, and the same is hereby granted for the reasons set forth above.
