6 Fla. L. Weekly Supp. 353a
Insurance — Personal injury protection — Attorney’s fees — Insured waived any objection to insured’s claim for attorney’s fees where insured’s complaint and subsequent motion for attorney’s fees and costs put insurer on notice as to claim for attorney’s fees, and insurer failed to object to motion for attorney’s fees until day of evidentiary hearing — Motion for attorney’s fees granted
PAMELA HARRIS, Plaintiff, v. U.S. SECURITY INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 96-05075 CC (05). February 5, 1999. Roger A. Silver, Judge.
ORDER ON PLAINTIFF’S MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES
THIS CAUSE having come before the Court upon the Plaintiff’s Motion for Attorney’s Fees and Costs, and the Court having reviewed the motion, memorandum of law and file, and having heard the arguments of counsel and being otherwise fully advised in the premises finds and concludes as follows:
1. This action was based on a claim for personal injury protection benefits arising out of an automobile accident.
2. The defendant paid the claim for benefits pursuant to the policy of insurance. It is undisputed that the payment of the claim is the equivalent of a confession of judgment or a verdict in favor of the insured. Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983); Amador v. Latin American Property & Cas. Ins. Co., 552 So. 2d 1132 (Fla. 3d DCA 1989).
3. Subsequent to the payment of benefits the plaintiff filed a Motion for Attorney’s Fees and Costs as the parties were unable to resolve the amount of attorney’s fees and costs owed to the plaintiff by the defendant. Thus, the issue regarding the plaintiff’s entitlement to fees remained an ongoing dispute.
4. The plaintiff’s motion specifically enumerated the statutory provision upon which attorney’s fees were sought, to wit: § 627.428, Fla. Stat. [upon rendition of judgment against an insurer the trial court shall adjudge against the insurer and in favor of the insured a reasonable sum as attorney fees].
5. The court finds that the plaintiff’s complaint and subsequent motion put the defendant on notice as to a claim for attorney’s fees, and that the failure of the defendant to object to the motion for attorney’s fees until the day of the evidentiary hearing, constitutes acquiescence of the plaintiff’s prosecution of her claim for attorney’s fees. Therefore, any objection the defendant had to the plaintiff’s claim for attorney’s fees was waived. Stockman v. Downs, 573 So. 2d 835 (Fla. 1991); also see U.S. Security Insurance Company v. Louis Smith, 6 Fla. L. Weekly Supp. 16 (11th Cir. 1998).
6. Further, the court finds that as an insurance company, the defendant is well versed in “PIP” litigation proceedings and the applicability of § 627.428, Fla. Stat. As such, it is bound to take notice of this section of the statutes as it does any other provision of the policy. Gibson v. Walker, 380 So. 2d 531, 533 (Fla. 5th DCA 1980). Therefore, any suggestion that it is surprised by a claim of attorney’s fees in this case is highly improbable and will not be entertained by this court.
It is, therefore,
ORDERED AND ADJUDGED,
1. The plaintiff’s motion for entitlement to attorney’s fees is GRANTED.
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