28 Fla. L. Weekly Supp. 345a
Online Reference: FLWSUPP 2804JHERInsurance — Personal injury protection — Complaint — Amendment — Motion to amend complaint to correct amount in controversy following confession of judgment for amount alleged in original complaint is granted — Amount in controversy is merely allegation and is not dispositive of issue of damages, request to amend complaint is the first request by medical provider and comes early in litigation, and insurer did not tender payment until immediately before hearing on motion to amend that was held 90 days after it confessed judgment
MRI ASSOCIATES OF TAMPA, INC., d/b/a PARK PLACE MRI, a/a/o Jorge Hernandez, Plaintiff, v. AUTO CLUB INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 18-CC-042340, Division M. March 31, 2020. Miriam Valkenburg, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
THIS CAUSE having come before the Court on February 27, 2020 on Plaintiff’s Motion for Leave to Amend Complaint, with counsel for both parties being present in court, and having full opportunity to be heard, and the Court having reviewed the entire court file, and having been fully advised in the premises, hereby finds as follows:
FACTUAL AND PROCEDURAL BACKGROUND
1. This is an action for unpaid and/or underpaid Personal Injury Protection benefits. On August 3, 2018 Plaintiff filed its Complaint seeking personal injury protection benefits, which included a jurisdictional statement that damages did not exceed $99.99.
2. On November 7, 2019, approximately fifteen (15) months after this lawsuit was filed, Defendant filed a “Notice of Filing Confession of Judgment” wherein it confessed judgment in the amount of $100.00, plus applicable interest. Within its Notice, Defendant stipulated to Plaintiff’s entitlement to reasonable attorney’s fees and costs, with jurisdiction reserved only as to the amount.
3. On that same date, upon receipt of Defendant’s Notice of Confession of Judgment, Plaintiff filed its Motion for Leave to Amend its Complaint amending the jurisdictional amount pled to “damages which exceed $99.99, but which does not exceed $500, exclusive of costs, interest and attorney fees.” Prior to the filing of its Motion for Leave, Plaintiff had not filed an amended pleading.
4. On or about February 19, 2020, and more than three (3) months after filing its “Notice of Confession of Judgment,” Defendant issued payment in the form of two separate drafts: one in the amount of $100.00, and a second in the amount of $17.55. Both drafts were made payable to Park Place MRI and mailed to Plaintiff’s counsel.
LEGAL ANALYSIS AND DISCUSSION
Hillsborough County Administrative Order S-2019-044(4) provides that “[e]very complaint or statement of claim will state either the exact total amount claimed or the value of the property involved, exclusive of costs, interest and attorney’s fees OR one of the six following statements: . . . (1) this claim does not exceed $99.99, exclusive of costs, interest and attorney’s fees . . .” (emphasis in original).
Jurisdictional allegations contained within the pleadings establish which court maintains jurisdiction over the subject matter and are not dispositive of the issue of damages. The plaintiff’s actual damages are to be decided by the pleadings and the proof at trial. See Chasin v. Richey, 91 So.2d 811, 812 (Fla. 1957) (noting “in the ordinary case it is the facts alleged, the issues and proof, and not the form of the prayer for relief, which determine the nature of the relief to be granted”) (emphasis added); see also Shirley v. Lake Butler Corp., 123 So.2d 267, 272 (Fla. 2d DCA 1960) (stating “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. . .An amendment of the prayer for relief is not necessary to obtain the substantive relief to which the claimant is entitled to under the pleadings and proof.”) (emphasis added).
Plaintiff further argues that “confessions of judgment” only arise when an insurer agrees to pay benefits in accordance with its insurance policy, see Fortune Ins. Co. v. Brito, 522 So. 2d 1028 (Fla. 3d DCA 1988) (emphasis added), and “decline[s] to defend its position in the pending suit.” Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217, 218, (Fla. 1983). Tendering a sum that is less than the full amount of the plaintiff’s claim does not amount to a confession of judgment. See e.g. Medical Specialists of Tampa Bay, LLC v. USAA Casualty Ins. Co., 18 Fla. L. Weekly Supp. 695b (Fla. Pasco Cty. Ct. May 18, 2011).
Here, while the Defendant confessed judgment payment was not tendered until over ninety (90) days and immediately before this hearing. By filing its “Notice of Confession of Judgment” without actually issuing the payment that is being “confessed,” Defendant is engaging in a game of “gotcha,” thereby attempting to capitalize on a procedural technicality in order to resolve a lawsuit for less than what is owed under subject policy of insurance. See e.g., Salcedo v. Ass’n Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979) (“courts will not allow the practice of the ‘Catch-22′ or ‘gotcha!’ school of litigation to succeed”); see also Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970) (finding that causes of action should be decided on their merits and not as the result of “ ‘surprise, trickery, bluff, and legal gymnastics’ ”).
Defendant, argues that by virtue of filing its “Notice of Confession of Judgment,” this Court is divested of jurisdiction, except to determine the amount of attorney’s fees and costs to be awarded to Park Place MRI, as the prevailing party. In support of this position, Defendant primarily relies on Wollard, supra, and its progeny. In Wollard, it was held that when an “insurance company has agreed to settle a disputed case, it has, in effect, declined to defend its position in the pending suit.” Id. at 218. Thus, as stated in Wollard, “the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured.” Id. (emphasis added); see also Fortune Insurance Company v. Brito, 522 So. 2d 1028 (Fla. 2d DCA 1988).
This Court must consider Florida Rule of Civil Procedure 1.190(e) as well as the liberal standard with regard to granting leave to amend pleading. In that regard, this Court is persuaded by the opinion of Judge A. Christian Miller in the matter of Mentor Chiropractic Rehab Center, Inc., a/a/o Nadia Rosin v. Progressive American Insurance Company, 27 Fla. L. Weekly Supp. 730a (Fla. Volusia Cty. July 16, 2019).
Although this Court notes that the Mentor case was governed by Florida’s Small Claims Rules at the time judgment was confessed and that the Florida Rules of Civil Procedure are fully invoked in this matter, the rationale holds true. In Mentor, much like the instant matter, a medical provider filed a lawsuit to recover unpaid PIP benefits and the insurance carrier opted to confess judgment. Shortly thereafter, the insurer filed a “Notice of Confession of Judgment” and the medical provider sought leave to amend the Complaint. The Mentor court granted the medical provider’s motion on the basis that “Florida Courts have long recognized strong public policy interests in favor of liberally allowing amendments to pleadings to allow cases to be addressed on their merits, absent abuse of the amendment process.” The Mentor court found no abuse of process as the motion for leave to amend was the medical providers “first request to amend, it was filed very early in the litigation, and the only requested change is to increase the damages allegation. It would almost certainly be an abuse of discretion to disallow an amendment of this type under this set of circumstances in any other case.”
Similar to the medical provider in Mentor, the instant Motion for Leave to Amend Complaint is Park Place MRI’s first attempt at amending its Complaint, and merely seeks to increase the jurisdictional amount. This Court does not find that Park Place MRI has abused the amendment process, nor that the filing of an amended pleading at this early stage in litigation would prejudice Defendant in any manner. Further, Auto Club Insurance Company of Florida has not presented any binding authority standing for the proposition that the jurisdictional amount plead serves as a cap on damages, nor that the mere filing of a “Notice of Confession of Judgment” without payment prevents the granting of the relief sought by Plaintiff. Accordingly, it is hereby:
ORDERED AND ADJUDGED that:
(1) Plaintiff’s Motion for Leave to Amend Complaint is GRANTED conditioned upon the payment of any increase in the applicable filing fee due to the Clerk of Court.
(2) The Amended Complaint attached to Plaintiff’s Motion for Leave to Amend is deemed filed as of the date of this Order.
(3) Defendant shall have twenty (20) days from the date of this Order to file its responsive pleading.
