27 Fla. L. Weekly Supp. 759a
Online Reference: FLWSUPP 2708BELMInsurance — Personal injury protection — Complaint — Amendment — Motion to amend complaint following confession of judgment for full jurisdictional amount alleged in original complaint is denied, and motion to enforce confession of judgment is granted — Confession of judgment divested court of jurisdiction and allowing amendment would prejudice insurer
ALLIANCE SPINE & JOINT, III, LLC, a/a/o Audrey Belmonte, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 18005094, Division 54. June 18, 2019. Florence Barner, Judge. Counsel: Joseph R. Dawson, for Plaintiff. Christopher E. Marshall, Law Offices of George L. Cimballa, III, Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONTO ENFORCE CONFESSION OF JUDGMENT ANDDENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT
THIS CAUSE having come before the Court on May 28, 2019, on Defendant’s Motion to Enforce Confession of Judgment and Plaintiff’s Motion to Amend Complaint, and the Court having heard argument of counsel, and being otherwise fully advised on the premises, it is hereby,
ORDERED AND ADJUDGED as follows:FACTS
On March 6, 2018, Plaintiff, Alliance Spine & Joint, III, LLC., as assignee of Audrey Belmonte, filed its Complaint for Personal Injury Protection benefits in Small Claims Court, seeking “damages that does not exceed ONE HUNDRED DOLLARS ($100.00), exclusive of interest, attorney’s fees and costs”. In its Complaint, Plaintiff included an assignment of benefits and a patient ledger in the amount of $1,173.00, as exhibits, and indicated that “there is due and owing the Plaintiff by Defendant the sum of $54.10”. On May 24, 2018, the parties invoked the Florida Rules of Civil Procedure and Defendant, GEICO General Insurance Company, filed its Answer and Affirmative Defenses on June 26, 2018.
On November 28, 2018, Defendant confessed judgment “to the amount of $100.00 in benefits and $11.31 in interest. . . Defendant stipulates to Plaintiff’s entitlement to a reasonable attorney fees and costs”. On December 13, 2018, Plaintiff filed its Notice of Rejection of Plaintiff’s Confession of Judgment stating that “the defendant ‘confessed’ to an amount which is less than the amount sought by the plaintiff and the amount which is inconsistent with the amount contained in the ledgers attached to the prior complaint which contained billing in excess of $1,173.00”. On December 14, 2018, Defendant filed its Motion to Enforce Confession of Judgment based on the fact that Defendant confessed to the full jurisdictional amount.
Then, on May 16, 2019, less than two weeks before hearing Defendant’s Motion to Enforce Confession of Judgment, and almost six months after Defendant filed its Confession of Judgment, Plaintiff filed its Motion for Leave to Amend Complaint and Memorandum of Law Ins Support Thereof. In its Motion for Leave to Amend, Plaintiff stated that the damages amount of $54.10 in paragraph 17 of its initial Complaint “was a typographical error as is evidenced by the Demand Letter, dated October 11, 2016, wherein the amount claimed to be due was $531.36” and provided an “Amended Complaint which is consistent with the Demand letter”. At the time of the hearing no affidavit, notice of filing demand letter or other records where filed with the court.
ANALYSIS AND DISCUSSION
Alliance argues that the amount of the claim in its initial Complaint was a scrivener’s error and in the interest of justice the Court should permit the amendment of Plaintiff’s Complaint. The crux of Plaintiff’s argument is Florida Rule of Civil Procedure 1.190(a)&(e), which provides, “[l]eave of court shall be freely given when justice so requires,” and “[a]t any time in the furtherance of justice. . . the court may permit any . . . pleading . . . to be amended. At every stage of the action the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” See also, Soucy v. Casper, 658 So. 2d 1017 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D198c] (The trial court was reversed to allow an amendment of the complaint where a plaintiff in a personal injury action sought to amend the complaint to add a count for reformation of a release to show mutual mistake when a summary judgment was pending), Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1955b] (Courts should be especially liberal when leave to amend ‘is sought at or before a hearing on a motion for summary judgment. . . Further, Florida Rule of Civil Procedure 1.190(e) instructs that ‘[a]t every stage of action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.’ Thus as a general rule, refusal to allow amendment of a pleading constitutes abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.). While a court should allow amendments in the furtherance of justice without prejudice to the nonmoving party or abuse of the process, Plaintiff’s case law does not address whether an amendment to the pleadings due to a scrivener’s error should be permitted after a confession of judgment is made.
GEICO argues that the court is divested of jurisdiction with the filing of a Notice of Confession of Judgment and stipulation to a reasonable attorney fee, and that a Plaintiff is not entitled to relief from a confession of the jurisdictional amount Plaintiff itself pled in its complaint and any motions seeking relief or amendment are moot given a filed confession of judgment to the jurisdictional amount. In confessing to the maximum jurisdictional amount claimed in a provider’s complaint and where a concession to the provider’s entitlement to a reasonable attorney fee is made, the court is divested of jurisdiction. Bretz Chiropractic Clinic, a/a/o Tyler Whitlock, v. GEICO General Insurance Company, 2017-AP-005946 NC, (12th Jud. Cir. Ct. App., Oct. 8, 2018) [26 Fla. L. Weekly Supp. 620a] (trial court did not err when it ruled that that the confession of judgment is an acknowledgment that a debt is justly due and in effect ends the dispute. The County court relied on Geico Casualty v. Barber, 147 So.3d 109 (Fla. 5th DCA 2014) [39 Fla. L.Weekly D1727a] for the proposition that following a confession of judgment, the County court only retains jurisdiction for purposes of entering the confessed judgment and reserving jurisdiction on the issue of attorney fees.); GEICO Casualty Company v. Barber, 147 So.3d 109 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1727a] citing Safeco Insurance Co. v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D1159c] (Where the defendant agreed to the entry of a judgment against it in the maximum amount, the issues between the parties as framed by the pleadings became moot because the trial court could not provide any further substantive relief. . . It would be error for the court to require the parties to proceed where the statute provided for recovery of attorney’s fees upon entry of judgment, the insured is not required to continue litigation where the insurer paid the claim. . . The confession check was tendered prior to the dismissal and a right to attorney’s fees vested. Therefore, the court “lack[s] jurisdiction to take any other action than to enter judgment.); Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983) (“[T]he payment of the claim is, indeed, the functional equivalent of a confession of judgment or verdict in favor of the insured.”); Douglas Price, P.A., a/a/o Chery Dickenson v. MGA Ins. Co., Inc., 21 Fla. L. Weekly Supp. 976a (Hillsborough Cty. Ct. 2014) (denying plaintiff’s motion for leave to amend and granting defendant’s motion to strike motion for leave for amend after confession of judgment in amount equal to or exceeding amount equal to or exceeding amount sought in plaintiff’s complaint, noting that “Defendant made a valid confession of judgment by paying the maximum jurisdictional amount claimed by plaintiff”; “A plaintiff may choose to voluntarily reduce the amount of its claim to obtain a lower filing fee, but in doing so also accepts the burden with that benefit where a confession of judgment for the reduced amount is a valid confession of judgment.”); Douglas Price, P.A., a/a/o Nehemie Chery v. State Farm, 22 Fla. L. Weekly Supp. 1094b (Hillsborough Cty. Ct. 2015) (striking document filed by plaintiff after confession of judgment in the full amount plead in complaint because “the court is divested of jurisdiction with the filing of a Notice of Confession of Judgment”); Chirocare of Sunrise, LLC (a/a/o Diosky De La Cruz) v. GEICO General Insurance Company, Case No. 2017-005436 CONO 70, (Broward Cty. Ct. Mar. 21, 2019, nunc pro tunc Apr. 13, 2018) [27 Fla. L. Weekly Supp. 202a] (Upon GEICO’s Confession of Judgment in the maximum jurisdictional amount set forth by Chirocare in its initial complaint and conceded to Chirocare’s entitlement to a reasonable attorney fee, the court is divested of further jurisdiction on this matter.); See also, Lake Worth Chiro a/a/o Cruz McKnight, v. Progressive American Insurance Company, Case No. 2015-008698 CONO 70, (Broward Cty. Ct. Feb. 25, 2016); Berman Chiropractic, a/a/o Rochel Albert, v. GEICO General Insurance Company, Case No. 2017-026778 COWE 82, (Broward Cty. Ct. May 13, 2019).
Additionally, GEICO argued that it lacked notice as to Plaintiff’s actual amount because while the demand indicated a claim for $531.36, Plaintiff’s Complaint only requested $54.10. “A plaintiff may choose to voluntarily reduce the amount of its claim to obtain a lower filing fee, but in doing so also accepts the burden with that benefit where a confession of judgment for the reduced amount is a valid confession of judgment.” Douglas Price, P.A., a/a/o Chery Dickenson v. MGA Ins. Co., Inc., 21 Fla. L. Weekly Supp. 976a (Hillsborough Cty. Ct. 2014). Additionally, Plaintiff’s Amended Complaint claimed a jurisdictional amount for “damages that are more than FIVE HUNDRED DOLLARS ($500.00) but are less than ONE THOUSAND DOLLARS ($1,000.00)” but sought in Paragraph 17, an amount of $408.73, another amount different than the amount in Plaintiff’s pre-suit demand.
IT IS ORDERED AND ADJUDGED as follows,
After reviewing the case law provided by the parties and the documents in question, this court is divested of jurisdiction upon the confession, and this court will find that that confession is, in fact, valid because the confession is up to the jurisdictional amounts as alleged in the complaint. Additionally, based on the fact that the confession was filed in November 2018 and the amended complaint was not filed until May 2019, it is unclear to this court as to how GEICO could be placed on notice that Plaintiff was seeking a different amount. Further as to Plaintiff’s motion to amend, this court will find that GEICO would in fact be prejudiced based on the amount that was alleged in the complaint and to vacate the confession would prejudice GEICO, and nothing has been provided to overcome that argument of prejudice. IT IS THEREFORE ORDERED ABD ADJUDGED THAT Defendant’s Motion to Enforce Confession is hereby GRANTED and Plaintiff’s Motion to Amend Complaint is hereby DENIED.
