5 Fla. L. Weekly Supp. 514c
Insurance — Personal injury protection — Attorney’s fees — Insured/passenger who filed suit against insurer for failure to pay claim within 30 days was entitled to attorney’s fees where insurer paid claim after suit was filed — Fact that complaint inadvertently listed driver’s policy number rather than insured’s policy number does not require different result where there was no confusion between the parties as to which policy was subject of suit
MARIA ALARCON, Appellant, vs. FORTUNE INSURANCE COMPANY, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 97-181 AP. L.T. Case No. 96-5339 CC (25).Opinion filed April 10, 1998. An Appeal from the County Court for Dade County. Marilyn Milian, Judge. Counsel: Michael J. Schwartz, for Appellant. Charles L. Vaccaro, Diane H. Tutt, for Appellee.
(Before CINDY LEDERMAN, VICTORIA PLATZER and LEON FIRTEL, JJ.)
This is an appeal from the trial court’s order denying attorney’s fees to an insured in an action brought pursuant to §627.428 of the Florida Statutes. Appellant, Maria Alarcon (Alarcon) was a named insured under her husband’s insurance policy issued by Appellee, Fortune Insurance Co. (Fortune). For the reasons stated, we reverse and remand.
The record shows that in June of 1996, Alarcon made a claim for PIP benefits under her policy with Fortune, numbered 950793097, for personal injuries sustained while a passenger in a vehicle driven by Alberto Robaina (driver). Ironically, the driver was also insured by Fortune, under a policy numbered 951810689.
In August of 1996, Alarcon brought suit for no fault benefits against Fortune for failure to pay her claim within thirty (30) days, as required by Florida Statute §627.736(4)(b). Although the language of the complaint states a claim under Alarcon’s policy, the policy number listed in the complaint was the policy of the driver. In January of 1997, almost six (6) months after the commencement of the suit, Fortune paid Alarcon’s claim under her policy number.
Based upon the payment of the claim, Alarcon moved for attorney’s fees. Alarcon contends that by paying the claim, Fortune confessed judgment and therefore is required to pay fees under Florida Statute §627.48. Fortune maintains, and the trial court agreed, that there is no basis for fees since the payments made were under Alarcon’s policy, not under the driver’s policy, which was the policy upon which suit was brought.
The case law is clear that where an insurer settles a claim by tendering payment, it has in effect elected not to defend its position. “The insurer’s payment of the claim has been deemed the functional equivalent of a confession of judgment or a verdict in favor of the insured.” Avila v. Latin American Property and Casualty Insurance Company, 548 So. 2d 894, 895 (Fla. 3d DCA 1989). The right to attorney’s fees inures to the insured upon such action by the insurer.
In this case, Fortune contends that because it paid under a different policy number, no right to attorney’s fees attaches. We reject Fortune’s contention.
The record supports Alarcon’s position that the policy number was inconsequential and could easily have been corrected at any point by the filing of an amended complaint. Further, Fortune had been placed on notice in May of 1996 that Alarcon was claiming benefits under her husband’s policy. The requisite application and medical records and bills, along with a demand for payment from Alarcon’s attorney, was sent by certified mail to Fortune. Those documents contained Alarcon’s policy number. Approximately two (2) months later, a lawsuit was filed containing the following language: “That Plaintiff has furnished the Defendant, FORTUNE, timely notice of the accident and proof of her claim and otherwise performed all conditions precedent to entitle them to recovery under the policy, but the Defendant has refused and continues to refuse to pay the Plaintiff for his medical expenses under the Personal Injury Protection provision of the above-mentioned contract of insurance.” But for the mistaken policy number, there could be no confusion between the parties as to which policy was the subject of the suit.
In light of the case law supporting attorney’s fees against an insurer, it is a well-settled policy consideration of the courts to discourage litigation and encourage prompt settlement of claims by awarding attorney’s fees to an insured where the insurer settles a claim post-suit but prior to final judgment. Wolland v. Lloyds and Companies of Lloyds, 439 So. 2d 217 (Fla. 1983). It would be fundamentally unfair, and certainly an act of placing form over substance, to reward Fortune for being the first to catch the scrivener’s error in this case and using it to its advantage by paying a claim almost eight (8) months after it was submitted and almost six (6) months after suit was filed. The insured Alarcon is clearly entitled to attorney’s fees under such a circumstance.
Reversed and remanded for a determination by the trial court of an appropriate attorney’s fee award to Alarcon. (CINDY LEDERMAN, VICTORIA PLATZER and LEON FIRTEL, JJ., Concur.)
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