21 Fla. L. Weekly Supp. 572a
Online Reference: FLWSUPP 2106COOP
Insurance — Personal injury protection — Standing —
Assignment — Valid assignment and equitable assignment provide medical provider
with standing — Payment of policy proceeds after suit was filed is functional
equivalent of confession of judgment
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP as assignee of Jonathan Cooper,
Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th
Judicial Circuit in and for Orange County. Case No. 2012-SC-12076. December 17,
2013. Wilfredo Martinez, Judge. Counsel: David B. Alexander, Orlando, for
Plaintiff. David R. Hwalek, Tampa, for Defendant.
Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th
Judicial Circuit in and for Orange County. Case No. 2012-SC-12076. December 17,
2013. Wilfredo Martinez, Judge. Counsel: David B. Alexander, Orlando, for
Plaintiff. David R. Hwalek, Tampa, for Defendant.
ORDER
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for
Partial Summary Judgment On Defendant’s Second And Third Affirmative Defenses
(Assignment Of Benefits And Standing), Defendant’s Motion For Final Summary
Judgment (Invalid Assignment Of Benefits) and Plaintiff’s Motion For Final
Judgment In Accordance With Confession Of Judgment and this Honorable Court
having heard arguments of counsel on August 29, 2013, September 18, 2013 and
December 17, 2013 and being otherwise fully advised in the premises, it is
hereby,
Partial Summary Judgment On Defendant’s Second And Third Affirmative Defenses
(Assignment Of Benefits And Standing), Defendant’s Motion For Final Summary
Judgment (Invalid Assignment Of Benefits) and Plaintiff’s Motion For Final
Judgment In Accordance With Confession Of Judgment and this Honorable Court
having heard arguments of counsel on August 29, 2013, September 18, 2013 and
December 17, 2013 and being otherwise fully advised in the premises, it is
hereby,
ORDERED AND ADJUDGED that:
1. The Court finds the document upon which the Plaintiff relies for standing
(ORLANDO HEALTH, Conditions for Treatment, etc.) to be a valid, legally
enforceable assignment in favor of the Plaintiff. Further, this Court finds an
equitable assignment of benefits exists between Plaintiff and Jonathan Cooper
and provides standing to Plaintiff in the present matter.
(ORLANDO HEALTH, Conditions for Treatment, etc.) to be a valid, legally
enforceable assignment in favor of the Plaintiff. Further, this Court finds an
equitable assignment of benefits exists between Plaintiff and Jonathan Cooper
and provides standing to Plaintiff in the present matter.
2. Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Second And
Third Affirmative Defenses (Assignment Of Benefits And Standing) is GRANTED.
Third Affirmative Defenses (Assignment Of Benefits And Standing) is GRANTED.
3. Defendant’s Motion For Final Summary Judgment (Invalid Assignment Of
Benefits) is DENIED.
Benefits) is DENIED.
4. “ ‘Where 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.’ ” Superior Ins.
Co. v. Libert, 9 Fla. L. Weekly Supp. 154a (Cir. Ct., 9th Judicial Cir.,
Appellate, November 19, 2001), quoting Ivey v. Allstate Insurance Co.,
774 So. 2d 679, 684-685 (Fla. 2000) [25 Fla. L. Weekly S1103a], citing
Wollard, 439 So.2d at 218 (Fla. 1983). It is undisputed in the present
matter that Defendant made payment of policy proceeds to Plaintiff after suit
was filed. Payment by Defendant, after suit had been filed, is a confession of
judgment or verdict in favor of Plaintiff and “any defenses that the Defendant
could have asserted relating to payment of such bill were waived, forfeited, or
merged into the payment of such dispute.” Suavita v. Progressive Consumers
Ins. Co., 10 Fla. L. Weekly Supp. 533a (Orange County, May 6, 2003)
(emphasis added) citing Wollard, 439 So.2d 217, United Automobile Ins.
Co. v. Zulma, 661 So. 2d 947 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D2373i],
Crooks v. State Farm, 659 So. 2d 1266 (Fla. 3d DCA 1995) [20 Fla. L.
Weekly D1984a], and Palmer v. Fortune Ins. Co., 776 So. 2d 1019 (Fla. 5th
DCA 2001) [26 Fla. L. Weekly D278a]; Also See Stewart v. Midland Life Ins.
Co., 899 So. 2d 331 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D552a]. Based on
the representations of counsel for Defendant, Defendant is not challenging the
filing or procedural sufficiency of Plaintiff’s Motion For Final Judgment In
Accordance With Confession Of Judgment in this matter. The Court finds
Plaintiff’s Motion For Final Judgment In Accordance With Confession Of Judgment
is properly before the Court.
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.’ ” Superior Ins.
Co. v. Libert, 9 Fla. L. Weekly Supp. 154a (Cir. Ct., 9th Judicial Cir.,
Appellate, November 19, 2001), quoting Ivey v. Allstate Insurance Co.,
774 So. 2d 679, 684-685 (Fla. 2000) [25 Fla. L. Weekly S1103a], citing
Wollard, 439 So.2d at 218 (Fla. 1983). It is undisputed in the present
matter that Defendant made payment of policy proceeds to Plaintiff after suit
was filed. Payment by Defendant, after suit had been filed, is a confession of
judgment or verdict in favor of Plaintiff and “any defenses that the Defendant
could have asserted relating to payment of such bill were waived, forfeited, or
merged into the payment of such dispute.” Suavita v. Progressive Consumers
Ins. Co., 10 Fla. L. Weekly Supp. 533a (Orange County, May 6, 2003)
(emphasis added) citing Wollard, 439 So.2d 217, United Automobile Ins.
Co. v. Zulma, 661 So. 2d 947 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D2373i],
Crooks v. State Farm, 659 So. 2d 1266 (Fla. 3d DCA 1995) [20 Fla. L.
Weekly D1984a], and Palmer v. Fortune Ins. Co., 776 So. 2d 1019 (Fla. 5th
DCA 2001) [26 Fla. L. Weekly D278a]; Also See Stewart v. Midland Life Ins.
Co., 899 So. 2d 331 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D552a]. Based on
the representations of counsel for Defendant, Defendant is not challenging the
filing or procedural sufficiency of Plaintiff’s Motion For Final Judgment In
Accordance With Confession Of Judgment in this matter. The Court finds
Plaintiff’s Motion For Final Judgment In Accordance With Confession Of Judgment
is properly before the Court.
5. Plaintiff’s Motion For Final Judgment In Accordance With Confession Of
Judgment is hereby GRANTED.
Judgment is hereby GRANTED.
6. Final Judgment is hereby granted in favor of the Plaintiff, EMERGENCY
PHYSICIANS OF CENTRAL FLORIDA, LLP as assignee of Jonathan Cooper, in accordance
with Defendant’s confession of judgment.
PHYSICIANS OF CENTRAL FLORIDA, LLP as assignee of Jonathan Cooper, in accordance
with Defendant’s confession of judgment.
7. The Court finds Plaintiff, EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP as
assignee of Jonathan Cooper, is entitled to its reasonable attorneys’ fees and
costs. The Court reserves jurisdiction to determine the amount of attorneys’
fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and
57.041.
assignee of Jonathan Cooper, is entitled to its reasonable attorneys’ fees and
costs. The Court reserves jurisdiction to determine the amount of attorneys’
fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and
57.041.
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