Plaintiff and the insurer reached a settlement agreement in a PIP declaratory action, which included an amount for fees and costs. The insurer failed to tender the settlement check within 20 days of the settlement and Plaintiff filed a motion to enforce the settlement, and also sought fees and costs for the motion. Before any hearing on the motion to enforce, the carrier provided the full settlement check and checks for interest that apparently exceeded the interest actually owed. Plaintiff argued that this payment constituted a confession of judgment and thereby supported fees. Trial Court rejected this argument and Plaintiff appealed. The Circuit Court affirmed, finding that there had never been any dispute as to the settlement, merely a delay in tendering payment. The only "change in position" that would support fees under 627.428 occurred when the insurer declined to defend the underlying suit and settled it. Thereafter, plaintiff failed to establish that the motion to enforce was what prompted the payment of the settlement. The court specifically distinguished this case from those cases in which the settlement failed to include fees or there were disputes as to the existence of, or scope of, the settlement. The court mentioned, in passing, that plaintiff had failed to contact opposing counsel, despite knowing that counsel was relocating offices. This suggests that the court felt that plaintiff's failure to inquire into the status of the payment, despite knowing that it could have been delayed by counsel's move was a factor in the court's DECISION.

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