6 Fla. L. Weekly Supp. 469a
Attorney’s fees — Insurance — Personal injury protection — Plaintiff entitled to reasonable attorney’s fees where insurer initially claimed that it was not provided sufficient information prior to filing of lawsuit to determine whether insured was a covered person, but failed to deliver checks until 43 days after it conceded that it was obligated to pay plaintiff’s PIP claim
EDWARD LACY, as parent and guardian of LUKRESHIA LACY, a minor, and EDWARD LACY, individually, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 98-367 AP. Lower Tribunal No. 96-1525CC05. Opinion filed May 7, 1999. An Appeal from the County Court for Miami-Dade County, A. Leo Adderly, Judge. Counsel: Michael J. Schwartz, Law Offices of Freud & Abraham, for Appellant. Jacqueline G. Emanuel, Riley, Knoerr & Emanuel, for Appellee.
(Before Steve Levine, Juan Ramirez, Jr., and Eleanor L. Shockett, JJ.)
OPINION
(PER CURIAM.) Lacy appeals from the denial of his Motion for Summary Judgment on the issue of his entitlement to attorneys fees. Lacy brought suit against Allstate for non-payment of PIP benefits. Allstate insured an individual named Adell Isaac. Isaac was involved in an accident on September 19, 1993. Isaac did not submit a claim for PIP benefits, but did submit a claim for damage to her car. On February 2, 1994, Allstate received a call from a lawyer representing a person named Lacy seeking PIP benefits. Allstate claims that it had no record of an insured named Lacy, and never received the necessary information demonstrating that Allstate owed coverage to Lacy. Lacy filed this action on January 31, 1996. On or about May 7, 1996, Lacy’s attorney sent Allstate an affidavit proving that Lacy was the grand-daughter of the named insured, and that she lived with Isaac at the time of the accident. On or about June 5,1996, Allstate agreed to extend coverage to Lacy. The record evidence, however, establishes that Allstate did not issue the checks in payment of the claim until June 20, 1996, and that the checks were not forwarded by Allstate to Lacy’s attorney until July 18, 1996.
Florida Statutes §627.736(4)(b) (1995) provides in relevant part:
“Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same . . . However, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment …
Florida Statutes §627.736(4)(c) provides that “overdue payments shall bear simple interest at the rate of 10 percent per year.” Florida Statutes §§ 627.736(8) and 627.428 allow recovery of attorneys’ fees “[u]pon the rendition of a judgment or decree.” This has been interpreted to include payment of the underlying claim at issue in a lawsuit, Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983) (payment is the functional equivalent of a confession of judgment or verdict in favor of the insured). See, e.g., Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1st DCA 1974).
Allstate’s claim that it was not provided sufficient information prior to the lawsuit about Lacy being a covered individual has merit, but is irrelevant. The fact remains that Allstate, on June 5, 1996, conceded that it was obligated to pay Lacy’s PIP claim. Yet, it failed to deliver the checks until 43 days later. This delay was in violation of the statutory requirements. In our opinion, the untimely settlement payment by Allstate was equivalent to a confession of judgment, and the lower court erred in not awarding a reasonable attorney fee to Lacy. Fortune Ins. Co. v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA 1997).
Accordingly, this cause is remanded to the trial court to enter summary judgment for Appellant on the issue of entitlement to attorneys fees, and to award a reasonable amount based on legal work performed after June 5, 1996, including attorneys fees for this appeal.
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