9 Fla. L. Weekly Supp. 489b
Insurance — Personal injury protection — Action by insured against PIP insurer — Where insured erroneously requested payment for medical bills related to automobile accident from health insurance provider, bills were paid by health insurance provider, insured’s attorney represented to insured’s PIP insurer that insured had entered into a settlement agreement with health insurance provider for payment of a reduced amount as full and final satisfaction of health insurance provider’s lien, PIP insurer relied on attorney’s representation in tendering reduced amount to health insurance provider, and PIP insurer had a detrimental change in position caused by that representation in that it satisfied the lien as represented by the insured and did not tender payment in full or otherwise attempt to negotiate lien to a lesser amount, summary judgment is granted in favor of PIP insurer
JOHN MANSFIELD, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-29225(55). April 12, 2002. Jerry Pollock, Judge. Counsel: Andrew Weinstein, for Plaintiff. Brenda Fam, for Defendant.
FINAL SUMMARY JUDGMENT FOR DEFENDANT
THIS CAUSE having come on to be heard before the Court for hearing on Thursday, April 4, 2002, upon Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s Motion for Final Summary Judgment and the Court having heard argument of counsel, having reviewed the matters submitted in support of, and in opposition to, the Defendant’s Motion, and having been otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
1. That the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s, Motion for Final Summary Judgment is hereby GRANTED.
2. That Final Summary Judgment is hereby entered in favor of the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and against the Plaintiff, JOHN MANSFIELD, shall take nothing by this action against the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and Defendant shall go hence without day.
3.The Court retains jurisdiction for the taxing of costs and attorney’s fees as allowed by law.
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DEFENDANT’S MOTION FOR FINALSUMMARY JUDGMENT
Statement of Undisputed Facts
1. Plaintiff filed a PIP suit against the Defendant for medical services rendered by John Smith MD, Brandon Jones & Sandall, Orthopedic Surgery Associates, and Garden Radiology Associates. See Plaintiff’s Complaint allegation 7.
2. The medical charges for the aforementioned providers were submitted to Blue Cross/Blue Shield and the amount paid by Blue Cross/Blue Shield as are reflected in allegation 7 of the Plaintiffs Complaint.
Provider Total Charges Total Paid Total Due
By BC/BS From
Defendant
John R.Smith M.D. $450.00 $240.34 $240.34
Brandon Jones & Sandall $50.00 $13.50 $13.50
Orthopedic Surgery Ass. $287.00 $122.40 $122.40
Gardens Radiology Ass. $415.00 $74.70 $74.70
Total Due $450.00
3. Plaintiff contends that he erroneously requested payment from Blue Cross/Blue Shield and subsequently requested State Farm to reimburse Blue Cross/Blue Shield via correspondence from his attorney/agent June 19, 2001. See allegation 7 of the Plaintiff’s Complaint and Exhibit “A” attached and incorporated to the Plaintiff’s Complaint.
4.That the Plaintiff’s attorney, Andrew Weinstein Esq., represented to the Defendant in the letter of June 19th that Blue Cross/Blue Shield agreed to accept a reduced amount in settlement of their lien. See Exhibit “A” attached and incorporated to the Plaintiff’s Complaint.1
5. Further, enclosed with the June 19th letter to State Farm was a copy of a letter from Blue Cross/Blue Shield stating that Blue Cross/Blue Shield had entered into a settlement agreement with the Plaintiff’s attorney in which Blue Cross/Blue Shield agreed to accept payment of $256.12 as full and final satisfaction for the subrogation claim. See June 19th, 2001 letter from Plaintiff’s attorney, enclosure referenced “You will see from the enclosed Blue Cross/Blue Shield has agreed to accept a reduced
amount in settlement…” and affidavit of Steven Vakili Exhibit “B” and allegation 7 of the Plaintiff’s Complaint.2
6. State Farm received the June 19th letter and enclosure letter from Blue Cross/Blue Shield on June 22, 20013 and diligently forwarded payment in the amount of $256.12 and an updated PIP payout log to Blue Cross/Blue Shield on July 2, 2001. See affidavit of Steven Vakili Exhibit “B”.4
7. That the settlement draft from State Farm was accepted and cashed by Blue Cross/Blue Shield on August 9, 2001. See copy of letter from Blue Cross/Blue Shield to Andrew Weinstein and copy of settlement draft attached and incorporated Exhibit “C” and copy of letter acknowledging receipt of draft as full and final settlement. Exhibit “D”.
8. That State Farm issued a draft for an amount lesser than that of the lien based in reliance upon the representations of Andrew Weinstein and the enclosed correspondence to him from Blue Cross/Blue Shield dated May 22, 2001. See affidavit of Steve Vakili Exhibit “B”.
9. That State Farm relied upon the statements and representations of Andrew Weinstein, attorney for the Plaintiff to their detriment when determining the amount in which should be tendered to Blue Cross/Blue Shield for payment of the lien and has been damaged as a result and become embroiled litigation in which the Plaintiff claims that he “personally remains primarily liable remains liable for any balance remaining after any payment made or to be made by the Defendant herein.5 See allegation 8 of the Complaint.6
Statement of the Issue
Whether any benefits were owed by State Farm to the Plaintiff on the date of filing Plaintiff’s Complaint for the Blue Cross/Blue Shield lien and whether State Farm justifiably relied upon Plaintiff’s attorney, agents, Andrew Weinstein’s representations and Plaintiff is estopped from changing his previously asserted position?
Statement of the Law
It is well settled under Florida law, and under principles of agency that an attorney serves as an agent for his client. See In Re Estate of Brugh, 306 So. 2d 599, 600 (Fla. 2d DCA 1975); (letter written by attorney admissible) St. Paul Fire and Marine Ins. Co. v. Welsh, 501 So.2d 54 (Fla. 4th 1987). Cruise v. Graham, 622 So.2d 37, 39 (Fla. 4” DCA 1993) (attorney acts as the client’s representative, and representations made by the attorney are representations made by the client); Boros v. Carter, 537 So.2d 1134, 1135 (Fla. 3rd DCA 1989) (attorney acts of his principal, the client); see also Woodard v. Florida State University, 518 So.2d 336 (Fla. 1st DCA 1987). An attorney’s representations to the Court are binding upon the Client. Rule of Judicial Administration 2.060(1) provides, “In all matters concerning the prosecution or defense of any proceeding in court, the attorney of record is the agent of the client…”. The acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client’s wishes. State v. Abrams, 350 So. 2d 1104 (4th Dist. 1988). In the case before the court, Andrew Weinstein Esq., communicated to the Defendant that he represented the Plaintiff in regard to the accident of 9-12-97. Further he enclosed a copy of the correspondence documenting that an agreed settlement between Blue Cross/Blue Shield and the Plaintiff and requested payment of the healthcare provider’s lien on behalf of John Mansfield. Further attorney for the Plaintiff represented to State Farm that payment to Blue Cross/Blue Shield of $256.12 would result in full and final satisfaction of the lien.7 State Farm made timely payment to Blue Cross/Blue Shield within thirty days of the Plaintiff’s request and Blue Cross/Blue Shield accepted payment and deposited the draft. See Composite Exhibit “B”.
The doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury. Keramati v. Schackow, 553 So. 2d 741 (5th DCA 1989). The record in this case contains irrefutable evidence from which it can be reasonably inferred that Plaintiff, Mansfield, through his authorized agent attorney, engaged in conduct which caused State Farm to believe that payment of $256.12 would satisfy the Blue Cross/Blue Shield lien in full.8 These statements whether willful — culpable or negligent induced State Farm to issue — a draft in the amount requested $256.12 to Blue Cross/Blue Shield for full and final payment and to act in such manner as to change their position injuriously. It is foreseeable that a party may believe that they need not take any further action based upon the representations made by an opposing counsel. Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 523 So.2d 725 (Fla. 3d DCA 1988). Equitable estoppel arises when representations of a party and his attorneys lull a party “into a sense of security and reasonably induced him, to forego” timely action resulting in great hardship and unjust enrichment to the party that induced inaction. “[S]ociety must be able to rely upon an attorney’s representations. The Oath of Admission to The Florida Bar, The Rules Regulating the Florida Bar and the interest of the general public mandate that attorneys tell the truth and act in an honorable fashion.” The Fla. Bar v. Wolis, 783 So. 2d 1057 (Fla. April 2001).
The essential elements of equitable estoppel are: (1) a representation by the party estopped to the party claiming the estoppel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance on this representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his or her detriment, caused by the representation and his or her reliance thereon. The necessary elements for equitable estoppel are clearly present:
(1) representation as to a material fact that is contrary to a later asserted position, “that payment of $256.12 to Blue Cross/ Blue Shield would result in full and final satisfaction of the subrogation claim”
(2) reliance on that representation, [payment of $256.12 was promptly tendered to Blue Cross/Blue Shield]
(3) and a change in position detrimental to the party claiming the estoppel, caused by the representation and reliance thereon. [that the Defendant satisfied the lien as represented by the Plaintiff and did not tender payment in full or otherwise attempt to negotiate the lien to a lesser amount].
Further the Plaintiff maintains that he is entitled to attorney fees and costs as a result of the Defendant paying the amount that the Plaintiff requested.9
The traditional concept of equity provides that a man should not be permitted to profit or benefit by his own wrong Young v. Young, 97 So.2d 470, (Fla 1957). Husband whom had represented to present wife that he was divorced from prior wife, when he was not asserted that subsequent marriage was farce and present wife thus had no entitlement to alimony. The doctrine applies even if the plaintiffs wrongdoing may have been strictly within the law will not relieve a party from its own wrong. 22 Fla Jur EQUITY § 81. Fundamental concepts of equity require that the Plaintiff be required to abide by the agreement that he requested the Defendant to abide by. Dewing v. Davis, Fla.App.1960, 117 So.2d 747. It is the general principle of equity that when one of two persons innocent of an intentional, moral wrong must suffer a loss, it must be borne by the one who, by his or her conduct, made the injury possible. Where one of two innocent persons must take a loss, equity will protect the one who was free from fault. 27 Fla. Jur. Estoppel and Waiver § 57. The allegations of the complaint set forth that the Plaintiff is attempting to avoid being bound to a settlement agreement in which he requested the Defendant to abide and be bound by. [a full and final settlement of the reduced amount of the claim as set out in his counsel’s letter and the letter from Blue Cross/Blue Shield]. As such, the Plaintiff is bound in equity by his acts to which the Defendant relied, and he must do that which good conscience he has agreed to do. Unkefer v. Merritt, 207 So. 2d 726 (4th DCA 1968) quashed on other grounds 223 So.2d 723.
Conclusion
The general rule is that the right of the complainant to the relief prayed must be determined by the facts existing at the time of the lawsuit was filed. Shackelford v. Old Dominion Ins. Co., 6 Fla L. Weekly Supp. 335 (Fla. 20th Cir Ct., Jan 20, 1999) If Blue Cross/Blue Shield had received and accepted the $256.12 as full and final settlement at the time the lawsuit was filed, then the Plaintiff had no valid cause of action. Further, the filing defect cannot ordinarily be remedied by the acquisition or accrual of a cause of action while the suit is pending. Meredith v. Long, 119 So.2d 114 (Fla. 1928).10 Id. also at Shackelford.
Wherefore, a Final Judgment should be entered with the Court reserving jurisdiction for to award the Defendant attorney fees and costs.
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1Any exhibit attached to a pleading shall be considered a part of the pleading for all purposes and if an attached document negates the pleader’s cause of action, the plain language of the document must control. Fla. R. Civ. P. 1.130. See also Striton Properties v. City of Jacksonville, 533 So.2d 1174 (1st DCA 1988).
2A court must accept the facts as alleged in the Complaint and Exhibits attached to the Complaint as true. See Visor v. Buhl, 750 So.2d 274,275 (Fla. 4th DCA 2000).
3The date that State Farm forwarded payment to Blue Cross/Blue Shield and the date that Blue Cross/Blue Shield cashed the draft are uncontroverted.
4Florida law has established that an insurer is not liable for statutory attorney’s fees if it timely pays the claim. Ledesma v. Bankers Ins. Co., 573 So.2d 1042, 1043. Insured’s attorney is in no better position than insured and does not have a right to attorney fees when at the time of the complaint was filed, there were no unpaid medical bills pending. Obando v. Fortune Ins. Co., 563 So.2d 116 (3rd DCA 1990).
5Further Blue Cross/Blue Shield confirmed with the Plaintiff’s counsel that they are not seeking monies beyond the stipulated settlement and that $256.12 was received from State Farm as full and final settlement of the lien. See Exhibit “D”.
6An insurer is not required to pay until receipt of reasonable proof of the loss and the amount of loss sustained by a claimant under F.S. Stat Ann §627.736, further the record before the Court is void of any showing that any no fault benefits were due to the Plaintiff at the time the claim was filed. Hughes v. State Farm Mutual Automobile Insurance Company, 294 So.2d 398 (1st DCA 1974). There is no allegation, proof, of showing of a written demand was made for the difference in the benefits claimed, but to the contrary there is a letter from Blue Cross/Blue Shield which confirms that $256.12 was paid in full and final settlement of the lien. Plaintiff is not entitled to pocket the difference in reductions of the lien amount. No fault benefits are not a windfall or duplication of payment is not intended. Atlanta Casualty Co. v. Yadevia, 579 So.2d 213 (2nd DCA 1991).
7Query, had State Farm disregarded the statements of Plaintiff’s attorney and ignored the negotiated reduction to the outstanding lien and satisfied the lien in full, it is conceivable that the Plaintiff’s attorney would have sought legal action against State Farm for unnecessarily depleting the insured’s remaining available benefits and possibly brought a second count for bad faith.
8A party is bound by allegations or admission of fact in his or her own pleadings and may be estopped and precluded by his or her pleadings from taking a position inconsistent therewith either in the same case or subsequent case. 22 Fla. Jur. §66.
9These tactics can only be viewed as a blatant attempt to set up the insurance company for attorney’s fees. Security National Insurance Company v. Biotronix Laboratories, Inc. 6 Fla. L. Weekly Supp. 314a (16th Circuit acting in their Appellate Capacity).
10Blue Cross/Blue Shield confirmed that they were not seeking the balance of the lien payment and confirmed that they had received payment from State Farm, Plaintiff’s attorney then consequently asserted that the Defendant should have provided him with a PIP payout log and claimed entitlement to payment of attorney fees for a claim in which no benefits were or are owing.
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