10 Fla. L. Weekly Supp. 361a
Insurance — Personal injury protection — Attorney’s fees — Justiciable issues — Voluntary dismissal — Insurer is entitled to section 57.105(1) attorney’s fees where insured knew or should have known that continued litigation over claim for two medical providers’ bills would be pointless several months prior to voluntary dismissal when insurer filed affidavit of one provider’s records custodian attesting to assignment which insured did not dispute signing, insurer advised that benefits had been exhausted by payment of subsequent bills, and insured learned that second provider’s bill had not been timely submitted to insurer because provider mailed it to the wrong carrier — Notice requirement of 57.105, as amended effective July 1, 2002, creates new obligation on party seeking fees which is not applicable to sanction for conduct which occurred before effective date of statute
LUIS VALDES, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-29187 COCE 56. February 10, 2003. Linda R. Pratt, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, Coral Springs, for Plaintiff. Brenda Fam, Hengber & Goldstein, P.A., Fort Lauderdale, for Defendant.
ORDER ON MOTION FOR ATTORNEY’S FEES
This cause was tried before the court on defendant’s motion to tax attorney fees and costs following plaintiff’s filing of a voluntary dismissal without prejudice of his claim for PIP benefits. The Court finds that fees are not awardable under Florida Statute 768.79, and that the only basis for fees is F.S. 57.105. The record reveals the following sequence of events:
Plaintiff, who is insured under a PIP policy with State Farm, filed this suit in September, 2001, alleging nonpayment of bills from two (2) medical providers: Health South, for $2,794.00, and Orthopedic & Spinal Associates (Orthopedic) for $446.00. The treatment which generated the bills occurred in April, 2001. Prior to filing suit, plaintiff’s attorney inquired of and was advised by Health South that its bills were outstanding, and that there was no assignment of benefits. Similarly, Orthopedic advised that its bill had been submitted to State Farm on May 15, 2001 and was unpaid. This is significant because defendant contended from the outset of litigation that plaintiff lacked standing to sue, and that it had never received any bills from Orthopedic.
After service of the lawsuit in November, 2001 defendant both informally and formally requested two things: copies of all HCFA forms for services claimed in the case, and copies of all documents signed by Mr. Valdes with either Health South or Orthopedic. Plaintiff’s response on December 11, 2001 was to produce the HCFA forms and to state that as to the second request (for documents signed by plaintiff) that he had no such documents in his possession.
On December 7, 2001 defendant also sought a more definite statement as to the bills at issue, contending in argument that it had never received any bills from Orthopedic. This motion followed an earlier informal request made by letter of November 21, 2001 for the HCFAs and the dates they were mailed. By agreed order on February 5, 2002 plaintiff agreed that the HCFAs would be produced (they had already been) and would be incorporated as part of the pleadings.
In the meantime, on January 30, 2002 defendant filed its answer asserting the defenses that as to Health South’s bills, plaintiff lacked standing because of an assignment of benefits. Attached to the answer were copies of the HCFAs indicating there was an assignment, and a copy of an assignment signed by Mr. Valdes. Plaintiff’s response was to notice the case for jury trial.
On March 5th, defendant moved for partial summary judgment regarding the Health South bills, attaching an affidavit from the “records custodian” of Health South attesting that it had a valid assignment of benefits. Defendant also filed a proposal for settlement. On March 7th, defendant further advised plaintiff’s counsel that it had received additional bills after the filing of the lawsuit which it would be obliged to pay, thereby exhausting plaintiff’s benefits. Defendant sought direction from plaintiff as to whether or not is should set aside funds to cover the bills in litigation, or proceed to pay the newest bills and thereby exhaust benefits. Defendant set a deadline of March 22nd for Plaintiff to reply and to accept its outstanding proposal for settlement.
Plaintiff did not respond to defendant’s correspondence, but on March 8th it sought to depose both the Health South records custodian and counsel for defendant. Plaintiff did not file any affidavits in opposition to the motion for summary judgment. Instead, plaintiff argued that he had “concerns” about how defense counsel had obtained the affidavit from Health South’s employee.1 However, at no time did plaintiff’s counsel ever indicate to the Court that his client disputed signing the assignment of benefits, and he was evasive on the question of whether or not the document was a forgery.
The court concludes from the above facts that plaintiff and plaintiff’s counsel knew or should have known that there was no factual basis to continue litigation over the issue of the assignment of benefits to Health South by the end of March, 2002. Furthermore, as of March 22, 2002 plaintiff knew or should have known that continued litigation would not benefit his client since benefits had been exhausted. The only issue in the case at that point was the bill from Orthopedic Associates that State Farm claimed from the outset it had never received. Plaintiff’s counsel claimed as late as April, 2002 that he was relying on the assumption that the bill had been timely submitted to State Farm in May of 2001, because that is the date on the HCFA form. State Farm’s repeated requests for more specific information as to how the bill was submitted and by whom were met with objections. The court finds that plaintiff knew or should have known by the end of March, 2002 that the bill had not been sent to State Farm in May because the provider mailed it to the wrong carrier. In fact the bill was not sent to State Farm until December, 2001, and plaintiff should have discovered that in fact in fulfilling his obligation to reply to defendant’s discovery requests.
Thus by the time of the deadline set by defendant for plaintiff to decide how to proceed with the case, plaintiff knew or should have known that his case had essentially fallen apart, and continued litigation would be pointless. Nevertheless, plaintiff continued to litigate until finally filing his voluntary dismissal in August of 2002. The Court further finds, for the reasons argued by defendant, that defendant is entitled to an award of fees for having to seek a protective order to prevent the deposition of defense counsel, and for defending plaintiff’s motion to deem requests for admissions admitted.
Plaintiff contends that defendant is not entitled to seek fees and costs under F.S. 57.105 because the statute as amended effective July 1, 2002 now provides that the party seeking fees or other sanctions may not present the motion to the court unless it has first served the motion and given the opposing party 21 days to withdraw the objectable claim or defense, or take corrective action. Defendant contends that plaintiff’s conduct occurred before the effective date of the new statute, and therefore the former version, 57.105 (1999), applies. Based upon the authorities cited in its memorandum of law, the Court agrees with defendant that F.S. 57.105(6) (2002) creates a new obligation and is therefore inapplicable to sanction conduct which occurred prior to its effective date. Therefore, the prior version of the statute governs, and defendant is entitled to an award of fees and costs it incurred in defending this suit after March 22, 2002.
The Court will determine the amount of fees and costs to be awarded upon further hearing.
__________________
1This case illustrates the pervasive attitude of mistrust that exists between the plaintiffs’ and the insurance defense’s bars. Apparently, plaintiff’s counsel’s first assumption upon receiving the affidavit from Health South’s employee was that defense counsel had colluded with the provider to obtain it. There is absolutely no evidence to support such an assumption.
* * *
