7 Fla. L. Weekly Supp. 322b
Insurance — Personal injury protection — Petition for writ of certiorari to prevent deposition of insurer’s claims adjuster, contending that medical provider’s lawsuit to collect PIP benefits became moot once insurer confessed judgment by tendering full liquidated sum sought by medical provider — Medical provider permitted to depose insurer’s claims adjuster for sole purpose of determining date on which insurer received subject claim so that proper calculation of interest can be made or agreed to by parties or, failing agreement, so that it can be determined by trial court — Upon such determination, further examination of claim’s adjuster will be unnecessary as final payment will render claims for declaratory relief moot
PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, vs. NU WAVE DIAGNOSTICS AND TESTING, INC., Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 00-67 (18). L.T. Case No. 99-14971 COCE 55. March 6, 2000. Petition for writ of certiorari from the County Court for Broward County, Florida, Pollock, Judge. Counsel: Warren B. Kwavnick, of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., for petitioner. Charles J. Kane, of Greenspan & Kane, for respondent.
(MORIARTY, J.) Progressive Express Insurance Company (“Progressive”) petitions for a writ of certiorari to prevent the deposition of its claims adjuster. Progressive contends that this entire lawsuit became moot once Progressive confessed judgment by tendering the full liquidated sum sought by Nu Wave in this action. The petition is granted in part and denied in part.
Nu Wave Diagnostics and Testing, Inc. (“Nu Wave”) initiated this action to collect Personal Injury Protection (PIP) benefits which were assigned to Nu Wave by Progressive’s insured. Nu Wave’s three-count Complaint seeks: monetary damages plus pre-judgment interest and attorney’s fees and costs (Count I); a Declaratory Judgment that Progressive could not deny the PIP benefits at issue without first conducting an independent physical examination of the insured (Count II); and a Declaratory Judgment that Nu Wave, being in the “business of scheduling and providing M.R.I. diagnostic testing,” is not thereby disqualified from collecting PIP benefits assigned to it (Count III).
Progressive initially denied that PIP benefits were due, but later changed its position and tendered a check for $1,200.00 (representing the entire principal amount claimed by Nu Wave in this action) bearing a legend stating, “full and final settlement.” While the checks also stated, “interest waived,” Progressive simultaneously tendered an additional check for $34.55, representing the statutory interest as unilaterally calculated by Progressive. Progressive also stipulated to Nu Wave’s entitlement to reasonable attorney’s fees. Nu Wave rejected the checks and mailed them back to Progressive’s counsel, explaining that the tender did not bring an end to the lawsuit because the declaratory judgment sought in Count III remained unadjudicated.
Nu Wave then set for deposition Progressive’s claims adjuster. Progressive filed a motion for protective order, contending that the matter was “settled” because “the Defendant paid the bill . . . plus the applicable interest.” The trial court denied the motion for protective order, finding that the matter had not been “settled” because Nu Wave had rejected the tendered checks, had not agreed to settle, and had not verified the amount of interest tendered.
It is the opinion of this Court that a tender of full relief would render this case moot in its entirety. Nu Wave contends, however, that it must conduct discovery to verify the amount of interest owed. Accordingly, Nu Wave will be permitted to depose Progressive’s claims adjuster for the sole purpose of determining the date on which Progressive received the subject claim so that a proper calculation of interest can be made or agreed to by the parties or, failing agreement, so that it can be determined by the trial court. Upon such determination, further examination of Progressive’s adjuster will be unnecessary, as final payment will render the claims for declaratory relief moot.
In all other respects, the petition for writ of certiorari is granted. Once Progressive re-tenders the $1,200.00 plus the full amount of interest determined to be owed, this entire case (including Count III which was severed and consolidated with another action) shall be moot and at an end, subject only to the trial court’s determination of reasonable fees and costs.
The Court hereby expresses no opinion regarding Nu Wave’s right to depose this very same claims adjuster regarding the very same PIP file in connection with any other case pending between these parties.
Petition granted in part; denied in part.
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