22 Fla. L. Weekly Supp. 960b
Online Reference: FLWSUPP 2208CANGInsurance — Personal injury protection — Coverage — Emergency medical condition — Declaratory action — Insurer’s payment of additional benefits in response to receipt of determination of emergency medical condition from non-party after filing of declaratory action seeking declaration that PIP coverage extends to $10,000 when there is no determination of absence of emergency medical condition did not constitute confession of judgment entitling provider to attorney’s fees award where insurer did not wrongfully withhold benefits or pay benefits as result of suit — Claim is dismissed as moot
CENTRAL PALM BEACH PHYSICIANS & URGENT CARE, INC., D/B/A TOTAL MD, a Florida Corporation (assignee of Cange, Fegens) Plaintiff(s), vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-011184 COCE 56. March 5, 2015. Linda R. Pratt, Judge. Counsel: Russel Lazega, Florida Advocates, Dania Beach, for Plaintiff. Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER ON PENDING MOTIONS AND DISMISSAL
This suit for declaratory relief seeking an interpretation of F.S. 627.736(1)(a)3 is before the Court on the following motions:
1.) Plaintiff’s motion to strike defendant’s proposal for settlement
2.) Defendant’s motion to strike plaintiff’s claim for attorney’s fees and motion to dismiss case as moot
3.) Plaintiff’s motion for summary judgment
Upon consideration of the record, the arguments of counsel and the relevant case law, it is ordered and adjudged as follows:
1.) The motion to strike the proposal for settlement is granted. See: National Indemnity Co. v. Consolidated Insurance Services, 778 So. 2d 404 (Fla. 4 DCA 2001) [26 Fla. L. Weekly D291a].
2.) The motion to strike the claim for attorney’s fees is granted. See: Progressive American Insurance Company v. Rural / Metro Corp. of Florida, 994 So. 2d 1202 (Fla. 5 DCA 2008) [33 Fla. L. Weekly D2649a].
3.) Plaintiff’s motion for summary judgment is denied. The Court finds that defendant’s payment of benefits after this declaratory judgment action was filed is not the equivalent of a confession of judgment. Plaintiff neither sought nor received benefits as a result of this suit, and defendant did not wrongfully withhold payment nor pay benefits because of this suit.
Defendant paid benefits in response to a determination received from a non-party to this suit that the patient had an emergency medical condition. In contrast, plaintiff here seeks a determination that PIP coverage is up to $10,000 because none of the claimant’s providers made a diagnosis of non-emergency medical condition. Payment of benefits to plaintiff were made prior to service of this lawsuit upon defendant, thus this suit was not the catalyst for payment. In such circumstances, the confession of judgment rule does not apply. Clifton v. United Casualty Insurance Company of America, 31 So. 2d 826, 829 (Fla. 2 DCA 2010) [35 Fla. L. Weekly D364e] (stating that whether an insurer’s post suit payment . . . constitutes a confession of judgment will be determined based upon whether “the filing of the suit acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligation under the insurance contract.” Lewis v. Universal Property & Casualty Insurance Company, 13 So. 3d 1079, 1081 (Fla. 4 DCA 2009) [34 Fla. L. Weekly D1104a]).
4.) Based upon the foregoing, defendant’s motion to dismiss the claim as moot is hereby granted
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