6 Fla. L. Weekly Supp. 234b
Insurance — Personal injury protection — Confession of judgment — Motion for summary judgment claiming that insurer confessed judgment by paying disputed medical bill after lawsuit was filed denied, where insurer may have paid the claim within 30-day review period — An insurer does not confess a judgment upon payment of PIP claim within statutory 30-day period, even if theory of anticipatory repudiation permits premature filing of lawsuit — Issue of whether insurer paid the medical bill before or after expiration of statutory 30-day review period remains unresolved
Additional ruling in this case at 5 Fla. L. Weekly Supp. 783a
MALCHUS SMITH, Plaintiff, vs. FORTUNE INSURANCE COMPANY, Defendant. County Court of the 17th Judicial Circuit, in and for Broward County. Case No. 97-22422 COCE 56. December 31, 1998. Robert W. Lee, Judge. Counsel: Laurie S. Moss, Davie, for Plaintiff. Van E. Anatasiou, Ft. Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on December 11, 1998 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and Court file; heard argument of counsel; reviewed the relevant legal authorities; and been otherwise advised in the premises, finds as follows:
Findings of Fact. This is a PIP case. The Plaintiff claims that the Defendant confessed judgment by paying the disputed medical bill after this suit was filed. As noted in previous orders of this Court, a separate issue in this case is whether the Plaintiff filed this action prior to the end of the Defendant’s statutory 30-day review period, and if so, whether the theory of anticipatory repudiation operates to allow the Plaintiff to prematurely file this action. The Court finds that an unresolved fact in this case is whether the Defendant insurer paid the medical bill before or after the expiration of the 30-day window.
Conclusions of Law. In Florida, an insurer’s payment of a claim after a lawsuit has been filed is generally construed as a confession of judgment. Wollard v. Lloyd’s and Companies, 439 So. 2d 217, 218 (Fla. 1983). The Court finds, however, that Wollard and the other cases cited by Plaintiff are distinguishable because none of them involve a situation in which the insurer may have timely paid the claim under the pertinent statute.
In this case, the Plaintiff concedes that he may have filed this action before the end of the 30-day review period, but if so, he is relying upon the theory of anticipatory repudiation. The Defendant concedes that it may not have paid the medical claim until after this action was filed, but claims that it thereafter paid the claim before the 30-day period had expired. This Court does not believe that the Plaintiff’s theory of anticipatory repudiation vitiates the Defendant’s obligation to timely pay a claim.
If the Defendant had withheld payment upon the Plaintiff’s filing of a premature suit, the Court is confident that the Plaintiff would argue against any claim that the 30-day review period is tolled. The Court does not believe that the public policy of this State should encourage premature filing of lawsuits. To the contrary, the Court believes that the public policy of this State is to encourage a PIP insurer’s prompt payment of benefits. Finally, Florida law has established that an insurer is not liable for statutory attorney’s fees if it timely pays PIP claims within 30 days. Ledesma v. Bankers Ins. Co., 573 So. 2d 1042, 1043 (Fla. 3d DCA 1991). Therefore, the Court finds the issues in this case to be sufficiently distinguishable from the other cases to hold that an insurer does not confess a judgment in a case upon payment of a PIP claim within the statutory 30-day period, even if the theory of anticipatory repudiation permits premature filing of the lawsuit.1 Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion is DENIED.
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1The Court expresses no opinion on the applicability of the statutory attorneys’ fees provision if the Plaintiff prevails on his theory of anticipatory repudiation.
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