DR MARSHALL BRONSTEIN, DC, A/A/O ALLISON HESSON v. PROGRESSIVE AMERICAN INSURANCE COMPANY

Third District Court of Appeal
State of Florida

Opinion filed January 26, 2022.
Not final until disposition of timely filed motion for rehearing.

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No. 3D21-0156
Lower Tribunal Nos. 19-202 SP & 20-153 AP
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Dr. Marshall Bronstein, DC, a/a/o Allison Hesson,
Appellant,

vs.

Progressive American Insurance Company,
Appellee.

An Appeal from the County Court for Miami-Dade County, Miesha S.
Darrough, Judge.

Buchalter, Hoffman & Dorchak, P.A., and Kenneth J. Dorchak; Chad
Barr Law, and Chad A. Barr (Altamonte Springs), for appellant.

Kubicki Draper, P.A., and Michael C. Clarke (Tampa), for appellee.

Before EMAS, GORDO and LOBREE, JJ.

PER CURIAM.

Dr. Marshall Bronstein, DC (the “provider”), as the assignee of Allison
Hesson (the “insured”), challenges the final judgment entered in favor of

Progressive American Insurance Company (the “insurer”) in this breach of

contract action for nonpayment of personal injury protection (“PIP”) benefits.

The trial court entered the final judgment pursuant to the insurer’s confession

of judgment in the maximum amount of damages alleged in the initial

complaint, plus interest. On appeal, the provider argues that the trial court

erred, as he amended the complaint to allege damages exceeding the

confessed judgment amount before entry of the final judgment. For the

following reasons, we agree and reverse.

The provider rendered treatment to the insured for injuries sustained

in a car accident, obtained an assignment of PIP benefits under the insured’s

policy with the insurer, and submitted bills for reimbursement. After the

insurer’s refusal to pay the bills in full, the provider made a pre-suit demand

for the total amount due, and ultimately filed a breach of contract action

against the insurer in the small claims division of the county court. The initial

complaint alleged that the provider submitted to the insurer medical bills in

the amount of $9,500, of which amount the insurer was responsible for at

least “80% less any statutorily authorized and contracted for reductions.”

The initial complaint further alleged that the amount in controversy was “in

excess of $100.00 but less than $500.00” but did not specify the exact

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amount owed. The insurer filed a confession of judgment of $556.61, which

it claimed represented the upper limit of benefits sought in the complaint,

plus applicable interest, tendered payment of this amount to the provider,

and acknowledged the provider’s entitlement to reasonable attorney’s fees

and costs, as the prevailing party.

Although the Florida Rules of Civil Procedure were fully invoked in

the case, 1 and the insurer was ordered to “serve its response to the

complaint” within a specified timeframe, no response to the initial complaint

was ever filed. The provider eventually amended the complaint to increase

the amount in controversy, alleging “damages in excess of $500.00 but less

than $2,500.00.” See Fla. R. Civ. P. 1.190(a) (providing that “[a] party may

amend a pleading once as a matter of course at any time before a responsive

pleading is served or, if the pleading is one to which no responsive pleading

is permitted and the action has not been placed on the trial calendar, may so

amend it at any time within 20 days after it is served”).

The insurer moved to dismiss the amended complaint, to enforce the

confession of judgment, and for the court’s entry of final judgment based

upon the confession of judgment. The insurer argued that the filing of the

1
See Fla. Sm. Cl. R. 7.020(c).

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confession of judgment in the maximum amount of damages pled in the initial

complaint effectively terminated any controversy between the parties, thus

divesting the trial court of jurisdiction to take any action other than to enter

the confessed judgment and award attorney’s fees and costs to the provider.

The provider responded that the issues between the parties were not moot

as, in light of the initial complaint being amended to increase the amount of

damages sought, a controversy remained as to whether the provider, in fact,

had received the full extent of PIP benefits to which he was entitled under

the policy.

Following a hearing, the trial court granted the insurer’s motion. The

trial court declined to recognize the amended complaint, seemingly agreeing

with the insurer’s contention that the confession of judgment in the maximum

amount of damages sought in the initial complaint mooted any controversy

between the parties as it pertained to the amount of benefits owed to the

provider, thus limiting its authority only to entering the confessed judgment

and awarding attorney’s fees and costs. The trial court entered final

judgment pursuant to the insurer’s confession of judgment, which the

provider timely appealed.

After the trial court’s ruling in this case, the Fourth District considered

whether a dispute between the parties became moot after the filing of an

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insurer’s confession of judgment up to the maximum amount of damages

pled in the complaint, where the provider sought to amend the complaint’s

maximum amount of damages allegation prior to entry of the confessed

judgment. See Alliance Spine & Joint, III, LLC v. GEICO Gen. Ins. Co., 321

So. 3d 242 (Fla. 4th DCA 2021).

There, the provider likewise brought an action against the insurer for

unpaid PIP benefits. Id. at 244. In its original complaint, the provider alleged

it was owed the sum of $54.10 from the insurer and included a separate

paragraph alleging the damages in the case did not exceed $100. Id. The

insurer filed a confession of judgment of $100, plus interest, and moved to

enforce the confession of judgment. Id. About five months after the insurer

confessed judgment and two weeks prior to the scheduled hearing on the

motion, the provider moved to amend the complaint claiming it was owed

$408.73 in damages. Id. The trial court denied the motion to amend and

granted the motion to enforce the confession of judgment, finding that upon

the filing of the confession of judgment in the maximum amount of damages

alleged in the complaint, its authority was limited to entering the confessed

judgment and awarding attorney’s fees and costs. Id. Given the timing of

the motion to amend, the trial court alternatively found that the proposed

amendment would prejudice the insurer. Id.

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 On appeal, the Fourth District noted that ordinarily, “when a party

confesses judgment up to the maximum amount of damages alleged in the

complaint, the confessing party has, in fact, agreed to the precise relief

sought in the complaint.” Id. In such a situation, the issues between the

parties, as framed by the complaint, become moot, as the trial court cannot

provide any further substantive relief to the claimant other than entering the

confessed judgment. Id. at 245. However, where the provider sought to

amend the complaint’s maximum amount of damages allegation prior to the

court’s entry of the confessed judgment, “the controversy between the

parties had not been so fully resolved that a judicial determination could have

no actual effect.” Id. Consequently, the Fourth District concluded “to the
U U

extent the court seemingly denied the motion to amend on the basis that it

lacked the authority to rule on the motion, . . . it was error to do so.” Id. We
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agree with the Fourth District’s holding in Alliance Spine and similarly
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conclude that the trial court here erred in declining to recognize the amended

complaint prior to entry of the confessed judgment. 2 Accordingly, we reverse
P1F P

2
We acknowledge that in Alliance Spine, final judgment in favor of the insurer
was nonetheless affirmed on the alternative ground that denial of the
amendment on the basis of prejudice was not an abuse of the trial court’s
discretion. 21 So. 3d at 246. Here, no prejudice was argued and no
discretion to deny the amendment existed because the provider was entitled
to amend the initial complaint as a matter of course under rule 1.190(a). See
Boca Burger, Inc. v. Forum, 912 So. 2d 561, 566-68 (Fla. 2005) (holding that

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the final judgment and remand for further proceedings consistent with this

opinion.

Reversed and remanded.

right of plaintiff under rule 1.190(a) to amend complaint once before service
of responsive pleading is automatic and absolute, and trial court has no
discretion to deny such amendment).

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