27 Fla. L. Weekly Supp. 913a
Online Reference: FLWSUPP 2710JONGInsurance — Complaint — Amendment — Motion to amend complaint to allege higher jurisdictional amount after insurer confessed judgment for minimal jurisdictional amount alleged in original complaint and first amended complaint is denied — Amendment would prejudice insurer
SPECIFIC CARE CHIROPRACTIC, a/a/o Janice Jong-A-Kiem, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Small Claims Action. Case No. 19-SC-4266. October 28, 2019. Tara Pascotto Paluck, Judge. Counsel: Christine E. King, The McQuagge & King Law Firm, Fort Myers, for Plaintiff. Gibelle G. Salomon, The Law Office of Quentin B. Fairchild, Fort Myers, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONTO AMEND AND GRANTING DEFENDANT’S MOTIONFOR FINAL JUDGMENT
THIS CAUSE comes before the Court on Plaintiff’s “Motion For Leave To File Second Amended Complaint” filed September 16, 2019 and Defendant’s “Motion For Entry Of Final Judgment,” filed September 17, 2019 and amended motion filed September 23, 2019. Having reviewed the motions, the case file, and the applicable law, and having heard argument by the parties on October 7, 2019, the Court finds as follows:
1. Plaintiff filed its complaint on May 28, 2019, alleging that the amount in controversy is less than $100. No documents were attached to the complaint.
2. Plaintiff filed an amended complaint on July 18, 2019, again alleging the amount in controversy was less than $100, and again attaching nothing to support the complaint.
3. On September 13, 2019, Defendant filed a “Confession of Judgment,” indicating that it had paid Plaintiff $107.85, the maximum amount in controversy plus interest.
4. Plaintiff then filed the motion to amend the complaint, arguing that it should be permitted to raise the amount in controversy.
5. In its motion for final judgment, Defendant argued that it had confessed judgment and tendered payment of the full amount in the complaint, ending the litigation, such that the Court only has jurisdiction to determine Plaintiff’s reasonable amount of attorney’s fees and costs.
6. At the hearing, Plaintiff’s counsel stated that the firm files suit before learning if benefits had been exhausted, so the firm routinely files for the lowest jurisdictional amount in order to save the client money, with the intention of subsequently amending the complaint to the actual amount in controversy. Upon inquiry by the Court, Plaintiff’s counsel indicated that discussions had occurred with Defendant during the pre-suit demand letter phase regarding the amount owed, while resolving the issue of timely billings.
7. Defendant argued at the hearing that Plaintiff had already amended the complaint without changing the amount due, and that Plaintiff was required to know the exact amount in controversy before filing suit. Defendant further argued that by filing for the minimal jurisdictional amount, Plaintiff took the risk that Defendant would tender that amount. Defendant argued that it would be prejudiced by an amended complaint at this point, since it had already confessed judgment and tendered the amount Plaintiff requested in the complaint.
8. “Refusal to allow amendment of a pleading constitutes an 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.” Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302, 305 (Fla. lst DCA 1991). The cases cited by Plaintiff are distinguishable, and Plaintiff did not submit any legal authority that an amended complaint is permitted after confession of judgment. The Court finds that amendment would prejudice Defendant, who has already tendered payment for the amount requested by Plaintiff. GEICO Cas. Co. v. Barber, 147 So.3d 109, 111-112 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1727a] (when entry of judgment was entered for the full amount the issues between the parties became moot because the trial court could not provide any further relief). Further, the Court finds that Plaintiff filed an amended complaint two months after filing the initial complaint, and that Plaintiff could and should have altered the amount due at that time to the correct amount in controversy. As Plaintiff articulated at the hearing, the Plaintiff intentionally and knowingly plead the lower amount in controversy in the complaint to obtain the benefit of lower filing fees. Only after the Defendant confessed judgment, the Plaintiff attempts to rescind that risk by wanting to amend the lawsuit again. This predicament is a business risk that the Plaintiff accepted when choosing to file suit at a nominal amount to avoid higher filing fees.
9. The Court finds that Defendant paid Plaintiff the full amount requested in the complaint, and there is no further relief to be granted. Defendant is entitled to final judgment.
ORDERED AND ADJUDGED that Plaintiff’s motion to amend the complaint is DENIED, with prejudice. Defendant’s motion for entry of final judgment is GRANTED. Final Judgment shall be entered contemporaneously with this order. The Court finds Plaintiff is entitled to attorney’s fees and costs pursuant to the confession of judgment, and the Court reserves jurisdiction to determine the reasonable amount of those attorney’s fees and costs.
