10 Fla. L. Weekly Supp. 643b
Attorney’s fees — Justiciable issues — Insurance — Personal injury protection — Insurer awarded attorney’s fees pursuant to sections 768.79 and 57.105 in action brought by provider for failure to pay PIP benefits and/or failure to make payments within thirty days based on finding that reasonable presuit investigation would have revealed that all benefits due were paid and policy limits exhausted nine months prior to filing of action
MEDICAL REHAB AND THERAPY CENTER, d/b/a PAIN CORRECTIVE CENTER OF BRANDON, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 98-07715 SC. Division J. April 3, 2000. Marva L. Crenshaw, Judge. Final Judgment on Defendant’s Fees and Costs. April 30, 2001. Gaston J. Fernandez, Judge. Counsel: Timothy Patrick, Tampa. Gale L. Young, Reynolds & Stowell, St. Petersburg.
ORDER GRANTING DEFENDANT’S MOTION FORATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court pursuant to the Motion of Defendant, State Farm Mutual Automobile Insurance Company for the entry of an order determining their entitlement to Attorneys Fees and Costs pursuant to Fla. Stat. § 768.79 and Fla. Statute §57.105. After considering the arguments of counsel and based upon a review of the record, the following findings of fact and conclusions of law are made:
1. Defendant served its Motion to Tax Attorney Fees and Costs on October 5, 1999 after the Court orally granted the Defendant’s Motion for Summary Judgment on October 1, 1999. The Order granting Defendant’s Motion For Summary Judgment was signed on October 14, 1999 and Final Judgment entered by the Court on December 15, 1999. The Motion to Tax Fees and Costs was timely filed and the Courts jurisdiction properly invoked. See, Gulliver Academy, Inc. v. Bodek, 694 So. 2d 675, (Fla. 1997)
2. Plaintiff, Medical Rehab and Therapy Center, d/b/a Pain Corrective Center of Brandon, Inc., filed this action on May 13, 1998 alleging that Defendant failed to pay PIP benefits and/or failed to make payments within thirty days. A Final Summary Judgment was entered against Plaintiff on the grounds that at the time the lawsuit was filed, there were no issues in controversy between the parties.
3. A reasonable pre-suit investigation by Plaintiff would have revealed that all benefits due were paid and the policy limits exhausted in 1996 and August 1997 some nine months prior to the filing of this action. The record does not contain any evidence to establish that plaintiff undertook a reasonable pre-suit investigation of the merits of this action. While the parties are not required to have absolute verification of the merits of their claims or to eliminate every possible defense before filing suit, they cannot ignore information for which notice is readily available to them upon reasonable investigation. See, City of Largo v. LaGrande, 650 So.2d 178 (Fla. 2d DCA 1995); In the Interest of A.C., 580 So.2d 884 (Fla. 1st DCA 1991); McHan v. Huggins, 459 So.2d 1172 (Fla. 5th DCA 1984); Ensign Bank, F.S.B. v. South Florida Warehousing II, 582 So.2d 165 (Fla. 4th DCA 1991). Plaintiff’s failure to conduct a reasonable pre-suit investigation resulted in the filing of the instant action for which there was a complete absence of a justiciable issue of law or fact raised by the complaint.
2. Defendant, State Farm Mutual Automobile Insurance Company served a Proposal for Settlement on the Plaintiff on July 28, 1999, pursuant to Fla. R. Civ. P. 1.442 and Florida Statutes, Section 768.79. Plaintiff failed to accept Defendant’s Proposal for Settlement.
Based upon the foregoing it is hereby ordered that Defendant, State Farm Mutual Automobile Insurance Company is entitled to recover from plaintiff, Medical Rehab and Therapy Center, d/b/a Pain Corrective Center of Brandon, Inc., attorney fees and costs pursuant to Florida Statutes §768.79 and §57.105. By separate order, the parties will be referred to mediation prior to the scheduling of any hearing as to the amount of Attorney Fees.
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FINAL JUDGMENT ON DEFENDANT’S FEES AND COSTS
THIS CAUSE, having come on for hearing on April 18, 2001 on Defendant’s Motion For Fees and Costs, upon the Court’s previous grant of entitlement pursuant to Florida Statutes, Sections 768.79 and 57.105, and the Court being fully advised in the premises, it is hereby,
ORDERED and ADJUDGED the Defendant, State Farm Mutual Automobile Insurance Company, shall recover from the Plaintiff, Medical Rehab and Therapy Center, d/b/a Pain Corrective Center of Brandon, Inc., the sum of $8,291.50 for attorney’s fees that shall bear interest at the rate of 10%, and the sum of $325.00 for expert witness costs, for which let execution issue.
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