9 Fla. L. Weekly Supp. 154a

Insurance — Personal injury protection — Attorney’s fees — Standing — Assignment — Issue of medical provider’s standing to pursue claim for which attorney’s fees were awarded was not properly preserved for review where issue was only raised in affirmative defenses, not in response to provider’s motion to establish entitlement to fees or at hearing on that motion — Even if issue was properly preserved for review, medical provider has standing pursuant to power of attorney that gives provider the power to collect payment for medical services rendered and the right to sue on behalf of insured for any unpaid medical bills — Trial court correctly determined that medical provider was entitled to attorney’s fees based on insurer’s confession of judgment by payment of benefits after litigation commenced

SUPERIOR INSURANCE COMPANY, Appellant, v. DAVID A. LIBERT, M.D., on behalf of ERIC A. HORNER, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-00-32. L.C. Case No. SCO98-687. November 19, 2001. Appeal from the County Court, Orange County, Jerry L. Brewer, Judge. Counsel: Wicker, Smith, Tutan, O’Hara, McCoy, Graham & Ford, P.A. Sylvia A. Grunor, for Appellant. Vose, Blau & Hayes, P.A. Stephan W. Carter, for Appellee.

(Before Komanski, Lauten and Bronson, JJ.)

FINAL ORDER AND OPINION

(PER CURIAM.) Appellant, Superior Insurance Company (“Superior”), seeks review of an order of the trial court determining that Appellee, David Libert, M.D. d/b/a First Choice Medical Center, on behalf of Eric A. Horner (“Libert”), was entitled to an award of attorney’s fees pursuant to section 627.428, Florida Statutes. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1). For the reasons expressed below, the decision of the trial court is affirmed.

On October 18, 1997, Eric A. Horner was injured in an automobile accident. Horner sought medical treatment for his injuries from Libert. Horner executed a power of attorney appointing Libert as his agent and attorney-in-fact for the purpose of collecting his benefits from Superior. Libert submitted medical bills to Superior for services rendered to Horner on November 3, 1997, November 18, 1997, November 30, 1997, December 30, 1997, and January 5-8, 1998, totaling $583.00.

Superior did not immediately pay the bills submitted due to some difficulty qualifying Horner for personal injury protection benefits. Apparently, Horner did not have automobile insurance but claimed coverage as a resident of his mother’s household. Joanie Horner, Eric Horner’s mother, was insured by Superior on the date of the accident by an automobile insurance policy that included personal injury protection benefits.

On February 4, 1998, Libert filed a Complaint against Superior seeking payment of the previously submitted medical bills, statutory interest, and attorney’s fees. On July 15, 1998, Superior filed an Answer, Affirmative Defenses, and Demand for Jury Trial. Superior raised Horner’s failure to cooperate and payment as affirmative defenses. Superior also asserted that Libert lacked standing to maintain this action and that he was not entitled to attorney’s fees.

On September 28, 1998, Libert filed a Motion for Attorney’s Fees based upon Superior’s payment of benefits during the course of litigation. Libert claimed that Superior’s payment was a confession of judgment, and therefore, Libert was entitled to attorney’s fees. On January 29, 1999, Libert filed a Motion to Compel Interest and Motion to Determine Entitlement to Attorney Fees. A hearing on that Motion was held on May 10, 1999. On May 18, 1999, the trial court entered an Order on Plaintiff’s Motion to Compel Interest and Motion for Entitlement to Attorney Fees. The trial court found that Libert was entitled to statutory interest and attorney’s fees.

On May 21, 1999, Superior filed a Motion to Certify Question of Great Public Importance. The trial court granted Superior’s Motion in an order filed on June 3, 1999. A Final Judgment Awarding Attorney’s Fees and Costs was rendered on July 23, 1999. Superior filed a Notice of Appeal in the Fifth District Court of Appeal on August 23, 1999.

In an opinion issued on March 17, 2000, the Fifth District Court of Appeal transferred the matter to this Court. See Superior Insurance Company v. Libert, 759 So. 2d 687 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D556c]. The main reason for the transfer was that the trial court’s order did not comply with Florida Rule of Appellate Procedure 9.160(d). Id. at 688. Additionally, the appellate court found the merits of the case to be dubious and felt that transferring the matter would avoid further delay. Id., citing Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000).

This matter was transferred from the Fifth District Court of Appeal and filed with this Court on April 7, 2000. An Amended Initial Brief was filed with the appellate court on January 31, 2000. An Order Directing Appellee to File Answer Brief was issued on April 18, 2000. An Answer Brief and a Motion for Appellate Attorney’s Fees were filed on June 29, 2000.DISCUSSION

On appeal, Superior argues that the trial court erred when it granted Libert’s Motion for Attorney’s Fees. In support of its argument, Superior first claims that Libert was an incidental third party beneficiary and that he was “only one member of a large class of health care providers and was, at best, a potential and incidental, but not intended, beneficiary of the contract.” In addition, Superior argues that Libert was only an “agent in fact with power of attorney” that did not have standing and was not otherwise entitled to attorney’s fees because he lacked an assignment of benefits. Alternatively, Superior argues that even if Libert was a “contracting insured” or “intended beneficiary” he was not entitled to attorney’s fees because Superior did not wrongfully withhold benefits. Superior argues that it had reasonable proof that it was not responsible for paying Horner’s claim because he was uncooperative in Superior’s attempts to establish coverage.

In response, Libert argues that Superior’s arguments regarding Libert’s status as an incidental beneficiary and Libert’s standing are waived because Superior did not raise them below. With respect to Superior’s argument regarding Horner’s non-compliance, Libert argues that Superior failed to present a factual foundation before the trial court to support this argument on appeal and that Superior’s payment acted as a confession of judgment that waived all other defenses.

Failure to Preserve Issues on Appeal

On January 29, 1999, Libert filed his Motion to Compel Interest and Motion to Determine Entitlement to Attorney’s Fees. In that Motion, Libert alleged that Superior “made payment of the insurance benefits, without interest, during the pendency of this litigation.” A copy of the draft was attached to the Motion as an exhibit. Superior did not file any response to Libert’s Motion. A hearing on the Motion was held before Judge Brewer on May 10, 1999. Ultimately, the trial court found as follows:

. . . I see nothing here that wouldn’t bring this case squarely under the confession of judgment provision or case law, as the case may be. And based upon the fact that Superior has indeed paid the disputed bills after the institution of a lawsuit, it would appear that there is an entitlement to attorney’s fees. So I will find that the plaintiff prevails on the Motion for Entitlement to Attorney’s Fees . . . .

(R 76).

Libert argues that Superior has raised several arguments on appeal that it failed to raise below. Generally, it is inappropriate for a party to raise an issue for the first time on appeal. See Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981); Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985). An appellate court cannot consider issues that were not before the trial court. Id.

Superior argues that Libert was an incidental third party beneficiary and, as such, is not entitled to attorney’s fees. Superior also argues that Libert was Horner’s agent in fact and not entitled to attorney’s fees on that basis. Superior did not raise these issues before the trial court and did not present any argument or evidence to support its conclusion at the hearing. Accordingly, this Court cannot properly consider these arguments on appeal.

Superior also argues on appeal that Libert lacked standing to pursue this claim. Again, the record is devoid of any evidence that Superior addressed this argument in response to Libert’s motion to establish entitlement to attorney’s fees, or at the hearing on the same. The only time this issue was raised was in Superior’s affirmative defenses. It appears that this issue was not properly preserved for appellate review.

Even if this issue had been properly preserved for appellate review, this Court finds that Libert has standing based on the ruling in Superior Insurance Company v. Libert, 776 So. 2d 360 (Fla. 5th DCA 2001). In that case, the Fifth District Court of Appeal found that the same power of attorney conferred standing on Libert to maintain an action against Superior.¹ Id. at 364-65. After the appellate court found that Superior’s withholding of payment was inexcusable, the court examined Libert’s legal capacity at the time he filed suit. Id. at 364. The appellate court found as follows:

The [Power of Attorney] gives Libert the power to collect payment for medical services rendered by Libert and the right to sue Superior on Chew’s behalf for any unpaid medical bills. The document also confers upon Libert the “power to act as [Chew’s] agent-in-fact with full power of attorney.” The power conferred upon Libert included the right to collect all attorney’s fees on Chew’s behalf. Additionally, Libert, through counsel, filed suit on behalf of Chew as suggested by the style of the case both here and below. Although Superior did not argue Libert’s lack of standing in the trial court, it now argues that Libert lacked standing to bring suit because he was not an assignee, but was Chew’s agent. By making that argument, we conclude that Superior concedes that Libert was acting on Chew’s behalf as her agent. Because section 627.428(1) allows attorney’s fees for the insured, attorney’s fees should also be recoverable by an agent acting in behalf of the insured. Moreover, Superior’s present and meritless argument that Libert lacks standing to sue was not preserved for appellate review. . . . A person who is named an agent for the purpose of collecting money and who is authorized to commence legal action to collect has standing to appeal the matter. See 2 FLA.JUR.2d § 63 Agency and Employment p. 640 (West 1999) (citing Rauch, Weaver, Millsaps, Bigelow & Co. v. Central Bank and Trust Co. of Miami, 453 So. 2d 459, 460 (Fla. 4th DCA 1984)); see also Sivak v. Brady-Spencer Management Co., Inc., 590 So. 2d 944, 945 (Fla. 5th DCA 1991).

Id. at 364-65.

Libert’s Entitlement to Attorney’s Fees

The next question is whether the trial court erred in finding that Libert was, in fact, entitled to attorney’s fees based upon Superior’s payment of benefits during litigation. Superior argued below, and argues on appeal, that it had good reason to deny Horner’s claim. Libert argues that Superior’s payment of the claim after litigation commenced amounted to a confession of judgment and Superior could not raise any defenses. In addition, Libert argues that Superior failed to provide any factual basis to support its claim.

“[W]here an insurer pays policy proceeds after suit has been filed but before judgment has been rendered, the payment of the claim constitutes the functional equivalent of a confession of judgment or verdict in favor of the insured, thereby entitling the insured to attorney’s fees.” Ivey v. Allstate Insurance Co., 774 So. 2d 679, 684-85 (Fla. 2000), citing Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So. 2d 217, 218 (Fla. 1983). Thus, Superior’s payment of policy proceeds constitutes a confession of judgment. Superior argues, however, that Libert is not entitled to attorney’s fees because it had a good reason to deny coverage until Horner was qualified under his mother’s policy.

In a similar case, an insurer denied coverage because the insured failed to satisfy a condition precedent in that she failed to appear for two independent medical examinations (“IMEs”). See United Automobile Insurance Company v. Zulma, 661 So. 2d 947 (Fla. 4th DCA 1995). Zulma filed suit and during the course of litigation, United learned that the reason Zulma missed her IMEs was because she did not speak English and she believed she had to see her own doctor, which she did twice. Id. at 948. United abandoned its defense and paid Zulma’s claim. Id. The question then became whether Zulma was entitled to attorney’s fees. Id. United argued that, because it was correct in initially denying coverage, it should not be liable for attorney’s fees prior to its discovery of the reason for Zulma’s failure to attend. Id. The appellate court held that:

In the instant case, United Automobile, perhaps in good faith, defended against Zulma’s suit on the theory that she had failed to comply with the terms of the insurance agreement. Although United Automobile could have continued to litigate the issue before a jury, it made the decision to settle the insurance claim after it determined that it would be difficult to prove that Zulma had unreasonably refused to submit to an IME. The case law clearly indicates, that if an insurance company settles a claim, the insured is entitled to attorney’s fees pursuant to section 627.428. See [Insurance Co. of N. Am. v.] Lexow, [602 So. 2d 528 (Fla. 1992)]….

Zulma, at 949.

This Court finds that the trial court’s determination that Libert was entitled to attorney’s fees based upon Superior’s “confession of judgment” was correct. Accordingly, the trial court’s order granting Plaintiff’s Motion to Compel Interest and Motion for Entitlement to Attorney Fees, and resulting Final Judgment, shall be affirmed.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Order on Plaintiff’s Motion to Compel Interest and Motion for Entitlement to Attorney Fees and Final Judgment Awarding Attorney’s Fees and Costs are AFFIRMED. (KOMANSKI, BRONSON, and LAUTEN, JJ., concur.)

__________________

¹In that case, the insured was Kristina Chew. Chew was Eric Horner’s girlfriend and was in Joanie Horner’s car with Eric Horner when it was involved in the automobile accident. At the time, Chew lived with Horner and Horner’s mother. Chew sought treatment from Libert, just as Horner did, and signed a similar power of attorney. See Libert, 776 So. 2d 360 (Fla. 5th DCA 2001).

* * *