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
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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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