27 Fla. L. Weekly Supp. 549aOnline Reference: FLWSUPP 2706DIAZInsurance — Personal injury protection — Attorney’s fees — Confession of judgment — Where insurer paid benefits and interest in check that was sent to medical provider rather than payee identified in demand letter and was cashed in error by separate entity unaffiliated with provider, and payment did not include statutorily required postage and penalty, payment does not relieve insurer of its obligation to pay provider pursuant to notice of confession of judgment, and provider is entitled to award of attorney’s fees — Motion to enforce confession of judgment is granted
SOUTH FLORIDA MEDICAL HEALTH CENTER, INC. a/a/o Enriquez Diaz, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 18-020564 SP 05 (01). August 8, 2019. Christina M. Diraimondo, Judge. Counsel: George Milev, Milev Law LLC, Key Biscayne, for Plaintiff. Brittany Brooks, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONTO ENFORCE CONFESSION OF JUDGMENT
THIS CAUSE having come before the Court on July 10, 2019 on Plaintiff’s Motion to Enforce Confession of Judgment, counsels for parties having made arguments before the Court and the Court being fully advised in the premises, hereby
FINDS, ORDERS AND ADJUDGES as follows:
FACTUAL ANALYSIS
1. This is a PIP lawsuit based on an alleged breach of automobile insurance contract.
2. On or about 7/13/2015, Enrique Diaz was involved in an automobile accident which resulted in injuries.
3. On 7/20/2015 continuing through 8/25/2015, Enrique Diaz sought medical treatment from South Florida Medical Health Center, Inc. with Dr. Padron.
4. Thereafter, and within the requisite time period, South Florida Medical Health Center, Inc. submitted medical bills via the required HCFA forms and a signed Assignment of Benefits, to Windhaven Insurance Company.
5. Windhaven Insurance Company failed to make payment pursuant to its policy obligations with Enrique Diaz.
6. As a result of the non-payment and pursuant to Florida Statute 627.736(10), The Arias Law Group, P.A. sent a demand letter to Windhaven Insurance Company. This demand letter was dated 3/16/2016 and requested payment of all outstanding medical benefits, interest, penalty and postage. A copy of same was filed with Court and docketed on 7/10/2019 and is incorporated through reference herein. See Miami Dade Clerk docket entry 45.
7. In response to the aforementioned demand letter, Windhaven Insurance Company provided a response to The Arias Law Group, P.A. on 5/13/2016 wherein the Defendant stated in pertinent part:
In response to your Intent to Initiate Litigation with regard to the above mentioned matter please be advised:
Please be advised there is no coverage for this loss as there has been a material misrepresentation that has caused this policy to be voided back to inception and all premiums have been refunded. Specifically, the named insured failed to disclose unlisted household member Doublan Diaz Corrales as required on the application.
Accordingly, we will not be remitting payment for benefits, interest, penalties or postage as requested in your letter.
A copy of same was filed with Court and docketed on 7/10/2019 and is incorporated through reference herein. See Miami Dade Clerk docket entry 45.
8. On or about 5/7/2017 The Arias Law Group, P.A. filed a Voluntary Dissolution. The Arias Law Group, P.A.’s Managing Partner was Kelly M. Arias, Esq.
9. On or about 5/8/2017 Kelly M. Arias, Esq. established The Evolution Law Group, P.A.
10. On or about 9/20/2018 The Evolution Law Group, P.A. filed suit on behalf of South Florida Medical Health Center a/a/o Enrique Diaz.
11. Plaintiff proceeded to litigate this case, propounded initial interrogatories; request for production; request for admissions; attended pre-trial conference (Windhaven did not attend and rather agreed upon a waiver for this event); filed multiple motions for summary judgments and filed a civil remedy notice.
12. Thereafter, on 11/29/2018, pursuant to Florida Rules of Civil Procedure 1.525, the Defendant filed a Confession of Judgment which states in pertinent part:
The Defendant acknowledges it responsibility to pay benefits and interest in accordance with the subject policy and Florida statutes. Defendant hereby stipulates to Plaintiff’s entitlement to reasonable attorneys’ fees and costs.
See Miami Dade Clerk docket entry 24
13. In addition, on 11/29/2018, to ensure fee entitlement and in accordance with the unilateral language contained within the Defendant’s Notice of Confession of Judgment, the Plaintiff filed its Motion for Attorney Fees.
14. Pursuant to applicable law, the confession draft(s) for the underlying claim were due to be tendered to/received by Plaintiff within 20 days from the date of Defendant’s Confession of Judgment or 12/19/2018. The Plaintiff did not receive any payment.
15. On 12/21/2018, the Plaintiff timely filed a Motion to Enforce Confession of Judgment in light of none payment.
16. On 12/26/2018, nearly a month post confession, after the parties had ceased litigation due to the Defendant’s confession, after the time for payment had expired, and after receipt of the Plaintiff’s Motion to Enforce Confession of Judgment, the Defendant filed a document it titled “Notice of Withdrawal of Defendant’s Notice of Confession”. This document fails to contain any rule, statute or case law in support of a withdrawal of a confession.
17. On 5/7/2019, the parties attended a hearing on the Plaintiff’s Motion to Enforce Confession of Judgment. At that time, this Court determined the need for an Evidentiary hearing.
18. On 7/10/2019, the parties attended an evidentiary hearing on the Plaintiff’s Motion to Enforce Confession of Judgment.
19. During the 7/10/2019 hearing, the Defendant attempted to explain the document it titled “Notice of Withdrawal of Confession of Judgment.” The Defendant claimed a check for medical benefits and interest, was mailed to the last known address of South Florida Medical Health Center, Inc., on or about 3/28/2018.
20. This check was cashed, according to the Regions Bank stamp, by a company called Red Diamond Medical Center, LLC, on or about 4/2/2018. A copy of this check is attached hereto and made thereof as “EXHIBIT A”.
21. At the time of the check rendering, the 3/16/2016 demand letter was still operative and The Arias Law Group, P.A. was still operational. The Defendant offered no rationale as to why the check for benefits and interest was not mailed pursuant to the statutory demand letter, nor did the Defendant pay the statutorily required penalty and postage. Rather, the Defendant’s argument to support a valid prior payment was simply premised upon a print out from the Department of Corporations indicating South Florida Medical Health Center, Inc. was active as of 3/28/2018.
22. In response, the Plaintiff filed the Affidavit of Dr. Padron. In this affidavit, Dr. Padron indicates he is the Corporate Representative of South Florida Medical Health Center, Inc. Dr. Padron testifies he “has not received any payments from Defendant for the services/treatment provided to Enrique Diaz in relation to the July 13, 2015 automobile accident.” Moreover, Dr. Padron testifies that “South Florida Medical Health Center, Inc. closed as a business on or about November 2017.”
23. The Defendant’s factual argument is flawed in three ways. First, the Defendant was statutorily obligated to disperse payment pursuant to the previously received demand letter. The Court’s factual analysis should end here. However, the Court will address the other two factual flaws. Second, the check presented by Defendant is unsworn and does not constitute record evidence. The check was never received by the Plaintiff, and in actuality was cashed in error by a separate entity, unaffiliated with Plaintiff. Therefore, the cashing of the check does not relieve Defendant of its obligations. Had the Defendant complied with the statutory demand letter, this issue would not exist. Moreover, the only record evidence presented to this Court is the Affidavit of Dr. Padron which clearly thwarts Defendant’s attempt to comply with the Mail Box Rule. Third, the print out from the Department of Corporations indicates an administrative dissolution for failure to file and annual report, an action performed unilaterally by the Department of Corporation. Dr. Padron clearly testifies the Plaintiff was closed in November 2017.
24. As such, the Court finds the payment cashed by Red Diamond Medical Center, LLC does not relieve the Defendant of its obligation to pay the Plaintiff pursuant to its Notice of Confession of Judgment.
25. In addition, the Court requested the parties file proposed orders with supporting authority no later than 7/17/2019. The Defendant filed a memorandum of law, however, it failed to file a proposed order with the Court.
LEGAL ANALYSIS
26. The Plaintiff presented the Court with two main legal arguments during the 7/10/2019 hearing. To wit, 1) The Court’s only jurisdiction post confession of judgment is in relation to entitlement and amount of attorney fees; and 2) The Defendant failed to comply with Florida Statute 627.736(10) by failing to pay the statutorily required penalty and postage.
1) The Court’s only jurisdiction post confession of judgment is in relation to entitlement and amount of attorney fees
27. The question presented is whether the Court retains jurisdiction to address matters beyond the execution of a Final Judgment and the Entitlement/Amount of Attorney Fees.
28. Following a Confession of Judgment, the trial Court retains jurisdiction only for purposes of entering the confessed judgment and reserving jurisdiction on the issue of attorney’s fees. See Geico Casualty Co. v. Barber, 147 So. 3d 109 (Fla 5th DCA 2014) [39 Fla. L. Weekly D1727a]. After a confession of judgment any remaining issues are deemed moot. See Safeco Insurance Co. of Illinois v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D1159c].
29. In Geico, the Plaintiff filed a one count complaint seeking uninsured/underinsured motorist benefits following an automobile accident. Geico initially refused to pay any benefits. Thereafter Geico filed a Notice of Confession of Judgment confessing to the policy limits of $10,000. The Plaintiff then filed a second count to the complaint seeking a bad faith determination. Geico objected as it had already confessed judgment. The lower court allowed the amendment. This was considered reversable error and was reversed on appeal. In this binding decision from the District Court of Appeal of Florida, Fifth, the Court stated “Geico contends that after it confessed to judgment, the trial court lacked jurisdiction to take any action other than to enter judgment in the amount of the UM policy limits in favor of Barber. We agree.” Id. At 111. “An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect (citing Godwin v. State, 593 So.2d 211 (Fla. 1992)). Id.
30. In Bretz Chiropractic Clinic v. Geico General Ins. Co., 26. Fla. L. Weekly Supp. 620a, the 12th Judicial Circuit Appellate, Affirmed this trial court on a similar issue. In Bretz, the Plaintiff filed suit for $99.00 and the Defendant Confessed Judgment as to the $99.00. Thereafter, the Plaintiff attempted to amend its complaint seeking damages in the amount of $499.00. The Plaintiff claimed the Notice of Confession of Judgment was a nullity because payment was not made contemporaneously.
The trial court ruled 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 Court only retains jurisdiction for purposes of entering the confessed judgment and reserving jurisdiction on the issue of attorney fees.
Id. This Court finds it lacks jurisdiction to determine any issue other than the execution of a Final Judgment pursuant to the Defendants Confession of Judgment and Entitlement/Amount of Attorney Fees for the Plaintiff. The Defendant’s Memorandum of Law fails to address any authority which would support a withdrawal of a Confession of Judgment. To the contrary, the authority cited by the Plaintiff is binding on this Court and supports enforcement of the Defendant’s Confession of Judgment.
2) The Defendant failed to comply with Florida Statute 627.736(10) by failing to pay the statutorily required penalty and postage
31. The question presented is whether the Defendant’s Notice of Confession of Judgment minimally resulted in a confession as to Defendant’s failure to pay statutorily required penalty and postage.
32. This Court has determined, via its factual analysis, the ‘prior’ payment of medical benefits was insufficient to relieve the Defendant of its obligation in regard to medical benefits and interest payments. However, the Court also addresses the Defendant’s obligation to pay penalty and postage in response to the Plaintiff’s demand letter.
33. Florida Statute 627.736(10) states in pertinent part:
If, within 30 days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer.
34. Judge Gloria Gonzalez-Meyer was faced with a similar issue in Hands Professional Center, Corp. v. Windhaven Insurance Company, 25 Fla. L. Weekly Supp. 903a (11th Circuit County Court 2017). In Hands, the Defendant, Windhaven, paid the medical benefits within the statutory thirty (30) days, to the plaintiff, in response to a demand letter. However, they failed to pay penalty and postage. As a result, the plaintiff filed suit. Thereafter, Windhaven confessed but disputed attorney fee entitlement. Judge Gonzalez-Meyer stated as follows:
Here, when Windhaven responded to the Plaintiff’s Demand letter by making a reduced payment, sections 627.736(10)(c) and 627.736(10(d)’s entitlement to the penalty, postage and interest were triggered. For whatever reason, which remains unexplained, Windhaven failed to pay the statutory postage and penalty. It was only by virtue of the lawsuit that Windhaven ultimately paid the penalty and postage, thereby confessing judgment for the statutory damages sought by the Plaintiff. To allow an insurer to avoid 627.428 attorney’s fee liability would remove any incentive for an insurer to pay penalty and postage when they are due and would force insureds to file suit in every instance with on attorney’s fee liability on the part of the insurer; a result that is contrary to the purpose of 627.748.
Id. Similar issues were presented in Doctor Ralph Miniet Practice v. Geico General Ins. Co., 25 Fla. L. Weekly Supp. 477a (11th Judicial Circuit County Court 2016) and Open MRI of Miami Dade Ltd. v. Geico General Ins. Co. 26 Fla. L. Weekly Supp. 229a (11th Judicial Circuit County Court 2018).
35. Here, the Defendant did not pay benefits within the statutorily required thirty (30) days; The payment made by the Defendant was a nullity as it was not paid to the Plaintiff; and the Defendant, despite its Confession of Judgment, has still failed to pay penalty and postage. This Court relies upon the rationale contained in Hands, Doctor Ralph and Open MRI in support of its finding that at a minimum, the Defendant’s Notice of Confession of Judgment requires the Defendant to pay statutory penalty and postage.
36. Moreover, the Defendant filed its Memorandum in Opposition to Plaintiff’s Motion to Enforce Confession of Judgment. In this motion the Defendant relies on two county court cases in support of its Notice of Withdrawal of Confession of Judgment. However, the case law cited does address a Withdrawal of Confession and the Court does not find this authority persuasive.
37. Specifically, the Defendant relies upon Jeffery L. Katzell, M.D. P.A. v. Mercury Insurance Company of Florida, 18 Fla. L. Weekly Supp. 314a (17th Judicial Circuit County Court 2010). In Katzell, the defendant made payment within 30 days of receipt of demand letter. The payment included medical benefits, interest, penalty and postage. All checks were made payable to the plaintiff versus the plaintiff’s attorney. However, the checks were mailed to the plaintiff’s attorney’s office. Despite receiving payment, the plaintiff still filed suit because of the way the checks were written. The Court in Katzell refused to award attorney fees to the plaintiff because it would not condone the plaintiff’s actions.
38. Here, the Defendant failed to make full payment, failed to make payment within 30 days and failed to send payment to the Plaintiff’s attorneys office pursuant to demand. The Court refuses to rely on Katzell as it is distinguishable and non persuasive.
39. The Defendant also relies on Fountains Therapy Center, Inc. v. State Farm Mutual Auto. Ins. Co., 25 Fla. L. Weekly Supp. 388a (17th Judicial Circuit County Court 2017). In Fountains, a similar situation occurred. Again, this Court refuses to rely on Fountains as it is distinguishable and non persuasive.
WHEREFORE, Plaintiff’s Motion to Enforce Confession of Judgment is hereby GRANTED, Plaintiff is entitled to attorney fees and this Court reserves jurisidiction to determine the amount of said attorney fees. Plaintiff is to submit a proposed final judgment to the Court.
