9 Fla. L. Weekly Supp. 118c
Insurance — Default judgment — Amendment — Prejudgment interest — Motion to amend final default judgment to reflect interest as calculated by subrogee insurance company denied — Subrogee is entitled to prejudgment interest at statutory rate, but that interest should be calculated from date of first claim made to date of judgment — When applying equitable considerations to facts of case it would be inequitable to allow subrogee to recover prejudgment interest prior to time of first claim made for repayment of loss, even in the matter of a default, where complaint demands “prejudgment interest if applicable,” implying that interest may not be due at all, and without reference to amount or date from which interest will be demanded, thereby failing to put defendant on notice that interest would be awarded, for what period of time and at what rate
STATE FARM INSURANCE COMPANY, Plaintiff, vs. EUGENE RAMSES a/k/a RAMSES EUGENE, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 00-4162-70. October 10, 2001. Kathleen D. Ireland, Judge. Counsel: Steven Harris, Tequesta, Counsel for Plaintiff.
ORDER DENYING MOTION TO AMEND DEFAULTFINAL JUDGMENT
THIS CAUSE having come on to be heard on Plaintiff’s Motion To Amend Default Final Judgment and the Court having heard argument and reviewed the law and being otherwise advised in the Premises the court finds
The relevant facts are: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as subrogee, has filed a Motion to Amend the Default Final Judgment asking the court to amend the judgment to reflect the pre judgment interest as calculated by the Plaintiff or in the alternative provide a clarification for the court’s calculation of the pre judgment interest.
Plaintiff is correct in its argument that this Court, upon first sitting as a Judge, relied upon the mere pleading of Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla. 1985) to award Plaintiff interest from date of payment of loss.
It was only with the passage of time, that the court perceived an unfairness in the situation after noting defendants were testifying to a lack of knowledge resulting from one of the following scenarios:
1. The defendant was the owner, not the driver and was unaware an accident had ever occurred; or
2. The defendant was the driver and knew of a minor accident but was unaware any claim for physical injury had been made to, and paid by, the plaintiff; or
3. The defendant knew of the accident, the damage and an injury, but no claim for payment was made prior to the service of the complaint.
Additionally, there was a consistent pattern on the part of the Plaintiffs to file their complaints only days prior to the expiration of the 4 year Statue of Limitation. This resulted in judgments routinely being entered four to five years after the date of the accident, thus imposing pre judgment interest, totaling as much as 45 percent of the claim, upon defendants on whom no prior claim had been made.
The Court now relies upon Broward County v. Finlayson, 555 So.2d 1211 (Fla. 1990) in which the Supreme Court considered the issue of pre judgment interest and said, “ARGONAUT states the general rule (emphasis added) concerning the payment of pre judgment interest: “[O]nce damages are liquidated, prejudgment interest is considered an element of those damages as a matter of law, and the plaintiff is to be made whole from the date of the loss.” 526 So.2d at 47.” But goes on to say that “This general rule is not abso1ute (emphasis added). In Flack v. Granham, 461 So. 2d 82 (Fla. 1984) the court stated “Interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to consideration of fairness. It is denied when its exaction would be inequitable”, Id. at 84. Further, in Ball v. Public Health Trust, 491 So.2d 608 (Fla. 3d DCA 1986), the Third District Court of Appeal allowed pre judgment interest but restricted the date it commenced to the date of demand or the commencement of the lawsuit, whichever occurred first. As noted by these decisions, the law is not absolute and may depend on equitable considerations. FINLAYSON applied equitable considerations to the facts and held that: “Given the circumstances in this cause, we find that it would be inequitable to allow the recovery of pre judgment interest prior to the time of the first claim for overtime pay.” Broward County v. Finlayson, 555 So.2d at 1214.
In the instant case the court found the following:
1. That an accident occurred on or about December 21, 1996;
2. That the complaint was filed on December 19, 2000;
3. That the claim was in the amount of $3,500.00 for personal injuries, plus pre judgment interest, if applicable, and costs;
4. That defendant, Eugene Ramses, driver, was served with the complaint on March 30, 2001;
5. That Plaintiff failed to submit proof of a claim made prior to the service of the complaint;
6. That the proposed default judgment requested $3,500.00 principle, $1,008.23 pre judgment interest and costs.
7. That on July 19, 2001 the Court entered a default judgment in the amount of $3,500.00 principal, plus $103.95 pre judgment interest and costs.
Accordingly, this Court finds when applying equitable consideration to the facts of this case it would be inequitable to allow Plaintiff to recover pre judgment interest prior to the time of the first claim made for repayment of the loss.
This inequity holds true even in the matter of a default in that the Plaintiffs’ complaint demands “pre judgment interest if applicable” (emphasis added) inferring interest may not be due at all and without reference to the amount or the date from which interest will be demanded, thereby failing to put the defendant on notice that interest would be awarded, for what period of time and at what rate of interest.
It is therefore,
ORDERED AND ADJUDGED that Plaintiff is entitled to prejudgment interest at the statutory rate, but that interest should be calculated from March 30, 2001, the date of the first claim made, to July 19, 2001, the date of judgment which is 112 days at 11% per year for a total of $118.14.
It is further,
ORDERED AND ADJUDGED that the Court, acknowledging a miscalculation, corrects the Default Final Judgment entered July 19, 2001 to reflect pre judgment interest of $118.14.
It is further,
ORDERED AND ADJUDGED that the Plaintiff’s motion to Amend Final Default Judgment to reflect the interest as calculated by the Plaintiff is hereby denied.
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