26 Fla. L. Weekly Supp. 240a
Online Reference: FLWSUPP 2603CARRInsurance — Personal injury protection — Attorney’s fees — Confession of judgment — Where insurer made payment to provider after lawsuit was filed, a proper demand letter having been served, provider is entitled to attorney’s fees and costs as a prevailing party even if the payment subsequently made exhausted policy benefits
SOUTH FLORIDA PAIN & REHABILITATION OF WEST DADE, LLC, a Limited Liability Corporation, (a/a/o Martha Carreno), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-008345 (70). May 8, 2018. John D. Fry, Judge. Counsel: Joseph R. Dawson, Fort Lauderdale, for Plaintiff. Christopher E. Marshall, Plantation, for Defendant.
ORDER ON PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on May 2, 2018, on Plaintiff’s Motion for Summary Judgment, and the Court having been duly advised in the Premises, finds as follows:
Findings of Fact
1. The Plaintiff is a medical facility which provided medical services on behalf of Martha Carreno, (“claimant”), who owned a policy of insurance with the Defendant.
2. Subsequent to a motor vehicle accident, the claimant presented at the office of the Plaintiff and medical services rendered for which billings were timely submitted to the office of the Defendant.
3. The Defendant did not pay the bills within 30 days, and a Demand Letter was sent to the Defendant on March 14, 2014.
4. The Defendant did not pay the medical bills covered by that Demand Letter within 30 days of receipt of that letter.
5. The Plaintiff filed its lawsuit on April 30, 2014, at 9:52 AM as is reflected in the Clerks Docket.
6. Pursuant to the affidavit of Christi Kiser, filed on April 30, 2018, at ¶ 9, “[o]n April 30, 2014, GEICO processed dates of service for January 20, 2014 and January 24, 2014 for payment to Plaintiff.”
7. The lawsuit was filed prior to the mailing of payments by the Defendant to the Plaintiff.
Legal Analysis
Pursuant to Rule 1.510 of the Fla. R. Civ. P., the pleadings, answers to interrogatories, and admissions on file, together with the Affidavit of Defendant’s Adjuster attached to its Motion for Summary Judgment, to establish no genuine issue of material fact whether Defendant has reasonable proof to establish that Defendant is not responsible for payment of Plaintiff’s claim. The only outstanding issue is strictly a question of law, and addresses the question of whether the payment on the claim by the Defendant after the litigation was initiated amounts of a confession of judgment despite the fact that it exhausted benefits and therefore Summary Judgment is proper.
For a Motion for Summary Judgment to be granted, there must be no genuine issue of material fact with respect to Defendant’s affirmative defense and the moving party must be entitled to a judgment as a matter of law. Diener & Shapiro, P.A. v. Reuben H. Donnelley Corporation, 577 So. 2d 601 (Fla. 3d DCA1991). A summary judgment should only be granted where the facts are so crystalized that nothing remains but questions of law. Shaffran v. Holmes, 93 So. 2d 94 (Fla. 1957). This may be done by the movant either disproving the affirmative defense or establishing the legal insufficiency of the affirmative defense. Stewart v. Gore, 314 So. 2d 10 (Fla. 2d DCA 1975).
However, a judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Florida Rule of Civil Procedure 1.510(c).
It has long been held that where an insurer agrees to settle a disputed case and in effect declines to defend its position, payment of the claim is the functional equivalent to a confession of judgment in favor of the insured. Losicco v. Aetna Casualty and Surety Company, 588 So. 2d 681 (Fla. 3d DCA 1992). Further, where a party is entitled to attorney’s fees for prevailing in an action, the payment of the subject sum by the insurer subjects them to an award of fees by virtue of the confession of judgment just as if the party had prevailed though other means. See, e.g., Wollard v. Lloyd’s and Companies of Lloyds, 439 So. 2d 217 (Fla. 1983). As that Court stated:
[T]he statutory obligation for attorney’s fees cannot be avoided simply by paying the policy proceeds after suit is filed but before a judgment is actually entered because to so construe the statute would do violence to its purpose, which is to discourage litigation and encourage prompt disposition of valid insurance claims without litigation. When the insurance company has agreed to settle a dispute case, it has, in effect, declined to defend its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of the confession of judgment or a verdict in favor of the insured.
Id., at 219. (citations omitted). See also Scott v. Progressive Express Ins. Co., 932 So. 2d 475 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1551a].
The Florida PIP Statute was enacted to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-684 (Fla. 2000) [25 Fla. L. Weekly S1103a], (quoting Gov’t Emps. Ins. Co. v. Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987)(emphasis in original). The Defendant was afforded two opportunities to pay the medical charges; Once when the medical billing was submitted and a second time when the demand letter was sent, which provided a 30 day safe harbor to pay the medical bills after which a lawsuit could be filed. A statutory penalty was provided if the Defendant had paid more than thirty days after the bills were due, but not more than 30 days after the demand was received. The fact that the Defendant did not know that a lawsuit was filed does not mean that the Plaintiff is not entitled to attorney fees and costs for filing the lawsuit given the statutory notice that was provided. Any other ruling would be to negate the statutory scheme of providing for swift payment of medical bills, but also providing notice of the intent to file a lawsuit to provide an opportunity for the insurer to avoid paying attorney fees.
The Defendant has improperly placed reliance upon Clifton v. United Cas. Ins. Co. of America, 31 So. 3d 826 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D364e] for the proposition that, because the lawsuit was not served upon the Defendant at the time they made the payment, that they do not owe attorney’s fees despite the fact that they violated Fla. Stat. § 627.736 in failing to pay the medical bills within 30 days, and did not pay the charges within 30 days of the April 14, 2014 Demand Letter. A careful analysis of that case reflects that it was a homeowner’s insurance claim where the issue of damages was decided by an appraisal process. The appraisal process resulted in an award in favor of the homeowner. Thereafter, the homeowner’s attorney filed a motion to confirm the appraisal award and for entry of judgment along with a claim for attorney fees. After paying the appraisal award, the insurer first filed a motion to dismiss and an affidavit indicating the insurer had no notice that the homeowner was dissatisfied with the appraisal award. Prior to the hearing, the insurer withdrew its motion to dismiss and the affidavit and filed a motion or summary judgment.
Conclusion
Because the Defendant made payment to the Plaintiff after the lawsuit was filed, a proper demand letter having been served upon the Defendant, the Plaintiff is entitled to attorney’s fees and costs as a prevailing party even if the payment subsequently made exhausted benefits. Therefore, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is granted.
