25 Fla. L. Weekly Supp. 291c
Online Reference: FLWSUPP 2503QUESInsurance — Personal injury protection — Attorney’s fees — Confession of judgment — Although confession of judgment by payment of postage and statutory penalty is not generally recovery of PIP benefits that entitles a plaintiff to award of attorney’s fees, insurer that incorporated requirement to pay penalty into PIP policy converted statutory obligation into contractual obligation — Medical provider that obtained confession of judgment for contractually obligated penalty prevailed on claim for PIP benefits and is entitled to fee award under section 627.428
CENTRAL MAGNETIC OPEN MRI OF PLANTATION, LTD. (a/a/o Monica Quesada), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16-001692 (49). April 21, 2017. Nina W. Di Pietro, Judge. Counsel: Vincent J. Rutigliano, Rosenberg & Rosenberg, P.A., Hollywood, for Plaintiff. Sadiq Mohamed, Law Office of George L. Cimballa III, Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S SECONDMOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on March 27, 2017 regarding Plaintiff’s Second Motion for Summary Judgment, and the Court having reviewed the Motion, the entire court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Plaintiff provided an MRI to Monica Quesada on October 12, 2015. Ms. Quesada assigned her benefits to Plaintiff and Plaintiff then billed Defendant for the MRI. When Defendant did not pay Plaintiff, Plaintiff sent Defendant a statutory demand letter requesting payment for the MRI along with penalty and postage. After receiving Plaintiff’s demand letter, Defendant issued a payment for the MRI in the amount of $920.10 in benefits and interest. Defendant did not, however, remit payment for the requested penalty and postage. The instant lawsuit was filed solely to recover the unpaid penalty and postage.
On August 4, 2016 Defendant filed a Confession of Judgment for the unpaid penalty and postage and the Court, on August 8, 2016, entered a Final Judgment in favor of Plaintiff. On August 16, 2016, Plaintiff filed a Motion for Summary Judgment regarding the issue of entitlement to attorney’s fees. Plaintiff requested that the Court grant entitlement to attorney’s fees pursuant to Florida Statute §627.428 based upon the entry of the August 8, 2016 Final Judgment. Defendant in turn argued, and the Court, in its January 9, 2017 Order Denying Plaintiff’s Motion for Summary Judgment agreed, that Plaintiff was not entitled to attorney’s fees, pursuant to United Auto Ins. Co. v. ISO Diagnostic Testing, Inc. (a/a/o Yoanne Quevedo) (hereinafter “Quevedo” or “the Quevedo case”), 23 Fla. L. Weekly Supp. 1000c (Fla. 17th Cir. Ct. App. 2016), as the Final Judgment was not a judgment on a claim for PIP benefits.
On January 17, 2017, Plaintiff filed its Second Motion for Summary Judgment (hereinafter “Second Motion”). In its Second Motion, Plaintiff now argues that it is entitled to attorney’s fees pursuant to Florida Statute §627.428 because Defendant’s policy of insurance contains an express provision for an overdue claim penalty [as opposed to Plaintiff’s first Motion for Summary Judgment which argued entitlement generally, did not mention a contractual provision regarding penalty or postage, and in Plaintiff’s proposed order claimed that the Quevedo court got it wrong by relying on Petty v. Florida Insurance Guaranty Association, Inc., 80 So. 3d 313 (Fla. 2012) [37 Fla. L. Weekly S34a]]. Plaintiff points to the following provision in Defendant’s policy, found in the section entitled “Conditions”:
If, within 30 days after receipt of notice by us, the overdue claim specified in the notice is paid by us together with applicable interest and a penalty of 10 percent of the overdue amount paid by us, subject to a maximum penalty of $250, no action may be brought against us.
Defendant, in turn, argues that Plaintiff has taken this express provision out of context as it is contained within the “Conditions” section of the policy (versus being contained within the “Payments We Will Make” section) and urges the Court to read the policy as a whole in order to see the full operative effect of the language at issue.
Florida Statute §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 Quevedo case holds that, for the purpose of entitlement to an award of attorney’s fees pursuant to Florida Statute §627.428(1) in a PIP case, the party must obtain a judgment in its favor on a claim for “PIP benefits” to be considered a prevailing insured, and that statutory penalty and postage imposed by operation of law [pursuant to Florida Statute §627.736(10)(d)] is not a PIP benefit. Quevedo arrived at this holding after analyzing the Florida Supreme Court case of Petty v. Florida Insurance Guaranty Association, Inc., 80 So. 3d 313 (Fla. 2012) [37 Fla. L. Weekly S34a].
The Petty case dealt with a statutory attorney’s fee award and held that a fee award pursuant to a statutory requirement is different than a fee award pursuant to an express provision of an insurance policy, in that a contractual fee award is part of an insurance policy’s coverage whereas a statutory fee award is not. Petty at 317. The Quevedo court analogized the statutory fee award in Petty to the statutory penalty and postage award in its case. The Quevedo court concluded that statutory penalty and postage was not a “PIP benefit” because it was not part of the insurance policy’s contractual coverage. Given this conclusion, the Quevedo court then held that the plaintiff in that case could not be considered a prevailing insured for purposes of entitlement to attorney’s fees as that plaintiff did not recover any PIP benefits.
Here, the Court finds that despite the placement of the overdue claim penalty provision within the policy, the provision itself affirmatively alters coverage. By adding the provision to its policy, Defendant contractually obligated itself to provide its insured with additional funds in the event that Defendant is notified of an overdue claim. Although Defendant is required to comply with Florida Statute §627.736(10)(d) (the statutory penalty and postage provision), Defendant was not required to make that obligation part of the language of its contract. By doing so, Defendant took a purely statutory obligation, which pursuant to Petty and Quevedo would not qualify as a PIP benefit, and converted it to a contractual obligation.
The Court therefore finds that Plaintiff’s August 8, 2016 Final Judgment is a judgment on a claim for PIP benefits, and that Plaintiff is therefore a prevailing insured for purposes of entitlement to attorney’s fees pursuant to Florida Statute §627.428.
ORDERED AND ADJUDGED that Plaintiff’s Second Motion for Summary Judgment is hereby Granted.
