27 Fla. L. Weekly Supp. 1036a
Online Reference: FLWSUPP 2712KAZUInsurance — Personal injury protection — Confession of judgment — Where insurer confessed judgment for maximum jurisdictional amount demanded in statement of claim, motion for entry of confessed judgment is granted — Demand letter for greater amount attached to statement of claim does not negate cause of action asserted so as to control over amount demanded in statement of claim and preclude entry of confessed judgment
MD DIAGNOSTIC SPECIALISTS LLC, a/a/o Kono De Garcia Kazuco, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2016-SC-016009-O. January 15, 2020. Tina L. Baraballo, Judge. Counsel: Olivia Hock Miller, Chad Barr Law, P.A., Altamonte Springs, for Plaintiff. Ayana Barrow, Law Office of Kelly L. Wilson, Orlando, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR ENTRY OF CONFESSED JUDGMENT
This action came before the Court on 01/08/2020 upon Defendant’s Motion for Entry of Confessed Judgment. The following procedural history is relevant:
° Plaintiff filed suit on 09/18/2016 alleging an action for damages of less than $100.00. Attached to the Statement of Claim was a demand letter dated 07/08/2016 seeking payment of $542.62 plus interest, postage and a penalty.
° Defendant filed its answer on 03/29/2017 and did not address the discrepancy in the amount set forth in the attachment and that in the Statement of Claim.
° Thereafter the parties engaged in discovery.
° On 08/16/2019 Defendant moved for entry of a confessed judgment by paying the $100.00 demanded in the statement of claim and interest and recognizing Plaintiff’s entitlement to attorney’s fees.
° The Court heard the Defendant’s Motion on 01/08/2020 and requested the parties provided additional case law regarding the issue of the conflict of the exhibit to the allegation of amount in the Statement of Claim.
The case law is clear that “[i]f an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss.” Fladell v. Palm Beach Cty. Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000) [25 Fla. L. Weekly S1102b] (citation omitted). It is also undisputed that “exhibits attached to the pleading are ‘considered a part thereof for all purposes.’ ” Glen Garron, LLC v. Buchwald, 210 So. 3d 229, 233 (Fla. 5th DCA 2017) [42 Fla. L. Weekly D308a]. Indeed, a court may look to the exhibits to determine the jurisdictional amount in controversy as well as appropriate venue. See Baldwin Sod Farms, Inc. v. Corrigan, 746 So. 2d 1198, 1203 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2771a] and Nicholas v. Ross, 721 So. 2d 1241, 1243 (Fla. 4th DCA 1998) [24 Fla. L. Weekly D24b].
In this case, the exhibit did not negate the cause of action pled, jurisdiction or venue. The matter would still have proceeded in small claims and within this Court’s jurisdiction. In fact, the exhibit is not wholly inconsistent with Plaintiff’s choice to sue for damages of less than $100.00. Plaintiff had the most knowledge of its claim at the time of filing and in the three years following the institution of this action and this Court assumes the Plaintiff acted in good faith. At no point did Plaintiff amend the statement of claim to request an increased amount or otherwise put the Defendant on notice that additional damages were being sought. Defendant was justified in relying on Plaintiff’s three year strategic decision to sue for damages of less than $100.00 and confessing judgment by paying the maximum jurisdictional amount demanded.
Plaintiff must accept both the risk and reward of the minimum jurisdictional amount pled. The reward being the reduced filing fee and the risk, of course, being Defendant would confess judgment by paying the jurisdictional amount demanded.
Accordingly, Defendant’s Motion for Entry of Confessed Judgment is GRANTED. The Court reserves jurisdiction to determine Plaintiff’s reasonable attorney’s fees and costs.
