28 Fla. L. Weekly Supp. 348a
Online Reference: FLWSUPP 2804PUEN
Insurance — Personal injury protection — Dismissal — Confession of judgment — Motions to dismiss, enforce confession of judgment, and enter final judgment are denied where insurer confessed judgment in amount less than upper limit of damages pled or unreduced policy limits, confession of judgment in response to original complaint was rendered nullity by fact that medical provider filed amended complaint as was its automatic right before insurer filed any responsive pleading to original complaint, and declaratory relief sought in amended complaint was not specifically related to damages sought in breach of contract count
MRI ASSOCIATES OF ST. PETE. d/b/a SAINT PETE MRI, as assignee of Maria Puente, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 19-CC-002590, Division M. March 31, 2020. Miriam Valkenburg, Judge. Counsel: Lorca Divale, The Physician Collection Group, P.A., Tampa, for Plaintiff. Eric A. Hogrefe, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS,MOTION TO ENFORCE CONFESSION OF JUDGMENT,AND MOTION FOR ENTRY OF FINAL JUDGMENT
THIS MATTER having come before the Court on February 25, 2020, on Defendant’s Motion to Dismiss, Motion to Enforce Confession of Judgment, and Motion for Entry of Final Judgment filed March 11, 2019, and having considered the motions and replies, the arguments presented by counsel, the court file and applicable law, and being otherwise fully advised in the premises, the Court finds as follows:
1. This is an action for breach of contract seeking damages that do not exceed $499.00. Plaintiff’s initial Complaint was filed on January 10, 2019. Plaintiff’s First Amended Complaint was filed on February 27, 2019. The Court notes that no responsive pleading had been filed at the time.
2. The Defendant was properly served on January 18, 2019.
3. On February 1, 2019, instead of filing an Answer to the Complaint, the Defendant filed a “Notice of Confession of Judgment” which claimed to be “for the amount of benefits demanded in the complaint for Plaintiff’s services provided to its aforementioned assignor, plus applicable interest for a total amount of $1.84.”
4. Although this case was filed in Small Claims Court, the full rules of civil procedure have been invoked pursuant to ADMINISTRATIVE ORDER S-2019-044(10)(a), Thirteenth Judicial Circuit, Hillsborough County, Florida.
5. Pursuant to Florida Rules of Civil Procedure 1.110(d) and 1.140(b) the Defendant shall file an answer and must raise every defense in law or fact in that responsive pleading. At the time Plaintiff filed its amended complaint, Defendant’s affirmative defense as to payment of the actual amount sued for, exhaustion of benefits, was not properly raised in an answer. Rather it was first raised on March 11, 2019 in Defendant’s Motion to Dismiss [Plaintiff’s First Amended Complaint], Motion to Enforce Confession of Judgment and Motion for Entry of Final Judgment.
6. Defendant’s Motion to Dismiss argues this Court lacks jurisdiction to grant Plaintiff leave to amend its complaint due to the “confession of judgment” in the amount of $1.79 plus $0.05 interest filed by the Defendant on February 1, 2019.
7. In support of its Motion, the Defendant’s relies upon Geico Cas. Co. v. Barber, 147 So. 3d 109 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1727a] and Bretz Chiropractic Clinic v. Geico General Ins. Co., 26 Fla. L. Weekly Supp. 620a (Fla. 12th Circuit (appellate) Oct. 8, 2018). Those cases however are distinguishable from the instant case. The cases relied upon by the Defendant involve either payment in the full amount of the pled damages in the complaint’s jurisdictional statement, or the entire, unreduced, policy limits at issue in the litigation. Here, Defendant paid $1.79 plus interest. This amount is not the upper limit of the damages pled by Plaintiff in the Complaint’s jurisdictional statement, nor is it the entirety of policy limits. Rather, as indicated by Defendant’s Motion, despite the alleged exhaustion of benefits in this matter, Defendant unilaterally calculated that $1.79 is the amount due Plaintiff in this action. See Defendant’s Motion ¶ 3. The Court has made no determinations relative to the amount of damages due in this matter. There have been no motions for summary judgment with evidence heard by this Court to make needed determinations regarding damages and relevant defenses in this matter. As such, there remains a controversy as to whether Plaintiff did in fact obtained full and adequate relief.
8. Next, the declaratory relief sought in Plaintiff’s First Amended Complaint is not specifically related to the damages sought in the breach of contract count. Plaintiff’s breach of contract count alleges that Defendant applied the PIP Schedule of Maximum Charges to Plaintiff’s bills for services provided to Maria Puente before applying the deductible to Plaintiff’s bills. This improper application of the PIP fee schedules by the Defendant to the insured’s deductible was addressed by the Florida Supreme Court in Progressive Select Ins. Co. v. Florida Hospital Medical Center, 44 Fla. L. Weekly S59a (Fla. December 28, 2018). In contrast, Plaintiff’s declaratory judgment action is specific to bills for which the deductible was not applied and the question remains whether the Defendant’s policy language is sufficient to incorporate the PIP fee schedules in Section 627.736(5)(a)1-5, Florida Statutes (2019) and if so, whether the proper fee schedule to apply is Medicare’s Limiting Charge or Participating Charge.
9. Third, Plaintiff’s First Amended Complaint was not filed by leave of Court because none was required at the time it was filed as no responsive pleading had been filed by the Defendant. Florida Rule of Civil Procedure 1.190(a) states that “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served. . . .” Several courts have recognized that Rule 1.190(a) “grants plaintiffs an automatic right to amend the complaint once before a responsive pleading is served.” See, e.g., Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla. 2005) [30 Fla. L. Weekly S539a], citing Vanderberg v. Rios, 798 So.2d 806, 807 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2548b]; Fusilier v. Markov, 676 So.2d 1053, 1054 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1597c]; Posey v. Magill, 530 So.2d 985, 986 (Fla. 1st DCA 1988); Abston v. Bryan, 519 So.2d 1125, 1127 (Fla. 5th DCA 1988); Fla. Power & Light Co. v. Int’l Bhd. of Elec. Workers Sys. Council U-4, 307 So.2d 189, 191 (Fla. 4th DCA 1975); Bryant v. Small, 271 So.2d 808, 809 (Fla. 3d DCA 1973).
10. As such, this Court agrees with the reasoning of its sister Hillsborough County Courts. See, e.g., Siegfried K. Holtz, M.D., P.A., aao John Antoine v. Geico Indemnity Company, Case # 11-CC-025759 (Fla. Hillsborough Cty. Ct. Feb. 6, 2012, Judge H. Berkowitz) (Notice of Confession of Judgment filed in response to original complaint rendered a nullity in light of complaint having been amended before a responsive pleading was served); Siegfried K. Holtz, M.D., P.A., aao Angela Franks v. Geico Indemnity Company, Order Case # 11-CC-025517 (Fla. Hillsborough Cty. Ct. Feb. 6, 2012, Judge G. Fernandez) (Motion to Strike Amended Complaint denied because Plaintiff’s amended complaint was filed after Defendant’s Notice of Confession of Judgment, but before any “responsive pleading” was filed by Defendant); Brandon Community Health and Rehabilitation, L.L.C., aao Carolyn Kelley v. Geico General Insurance Company, Case # 11-CC-026572 (Fla. Hillsborough Cty. Ct. Feb. 15, 2012, Judge M. Lucas) (Confession of Judgment is neither a responsive pleading, nor a judgment, therefore, filing of “Notice of Confession of Judgment” did not divest court of jurisdiction. Plaintiff had an “automatic right” to file amended complaint before Defendant filed a responsive pleading).
11. Finally, the current posture of this case and the record before the Court makes entry of final judgment premature at this time. As noted in paragraph 7, the $1.79 paid by Defendant was not the upper limit of damages pled by Plaintiff or the unreduced policy limits, but rather a unilateral damages determination. The matters at issue in this case are not ripe at this stage for the Court’s determination.
Based upon the foregoing, it is therefore ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss, Motion to Enforce Confession of Judgment, and Motion for Entry of Final Judgment filed March 11, 2019 is hereby DENIED.
