10 Fla. L. Weekly Supp. 373a
Insurance — Personal injury protection — Attorney’s fees — Justiciable issues — Where dissolved corporation rather than medical provider was named as party plaintiff in suit seeking PIP benefits for videofluoroscopy performed by chiropractor not licensed in Florida, there was complete absence of justiciable issues of fact or law at time suit was filed — Medical provider and its principals, although not named parties are individually responsible for insurer’s attorney’s fees and costs — Law firm for medical provider is liable for fees and costs for failing to act in good faith based upon client’s representations in filing suit where firm always knew identity of client, firm knew there were several different provider names in fee agreements and as named plaintiffs in PIP suits and knew correct name of provider, and firm knew or should have known that test was performed by an unlicensed doctor rather than doctor listed as provider on claim form, such that simple inquiry would have revealed that law firm named the incorrect party plaintiff in suit and that videofluoroscopy was performed in violation of Florida law and was, therefore, not eligible for payment under PIP statute
NU-BEST DIAGNOSTIC LABS, INC., as assignee of DEBBIE WICKERT, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 99-SC-140-19-U. March 6, 2003. Donald L. Marblestone, Judge. Counsel: Karen Walker. Don McKeever.
ORDER ON DEFENDANT’S MOTION FOR ATTORNEYS FEES AND COSTS
THIS CAUSE having come on to be heard on Defendant’s Second Amended Motion for Attorneys’ Fees and Costs and the Court having received testimony, argument of counsel and case authority, the Court makes the following findings of fact and conclusions of law:
l. Suit was initially filed by the McKeever law firm in June of 1999 on behalf of Nu-Best Diagnostic Labs, Inc. against Defendant State Farm. The cause of action was a PIP claim wherein it was alleged that Plaintiff was the assignee of Deborah Wickert, a State Farm policyholder. The complaint alleged that State Farm refused to pay PIP benefits to Plaintiff for diagnostic testing that Plaintiff performed on Wickert as a result of an automobile accident.
2. The case was vigorously litigated by the parties until the McKeever firm filed a voluntary dismissal on behalf of Plaintiff in August of 2000 on the very eve of jury trial.
3. Retrospectively, it is now undisputed that:
a. The McKeever law firm did not represent Nu-Best Diagnostic, Inc.
b. Nu-Best Diagnostics, Inc. was a dissolved Florida corporation.
c. Neither Nu-Best Diagnostics, Inc., nor its agent(s) performed the videofluoroscopy test in question on Ms. Wickert.
d. The videofluoroscopy in question was performed by Brent Baldasare upon Ms. Wickert in March, 1999. At the time of the test, Baldasare was neither licensed to practice chiropractic medicine in Florida nor was he licensed in Florida as a technician to operate X-Ray equipment.
e. Baldasare was a licensed South Carolina Chiropractor who had been “hired” as an independent contractor by Motion X-Ray, Inc., a Florida Corporation, and/or its principals, France Carpentier and Richard Argall, both of whom are Chiropractors who live and practice in Pinellas County. Neither Carpentier nor Argall is or ever was a principal of Nu-Best Diagnostics, Inc.
f. Prior to the events in this case, Carpentier and Argall had purchased a videofluoroscopy franchise from John Postlethwaite, who was and is a principal of several corporations using variations of the “Nu-Best” name. Carpentier and Argall formed Motion X-Ray, Inc. to perform videofluoroscopies in their franchise area, Central Florida, through the use of mobile X-Ray equipment provided by Postlethwaite in thefranchise purchase.
g. The Health Insurance Claim Form submitted to State Farm for Wickert’s test indicated the provider was, “Nu-Best Diagnostic Labs” of Palm Harbor, Florida and was signed by France Carpentier (signature on file).
4. Attorney Stacy Martindale filed this lawsuit while employed by the McKeever firm. She testified that her supervisors were Mr. McKeever, Mr. Albert and Mr. Barth. She further testified that this case was one of 30-40 cases she filed using the name Nu-Best Diagnostics, Inc. because not only were there numerous other cases in the office using that name, but also those were her instructions from Mr. Albert and Mr. McKeever. She further indicated that the health care provider’s representative she dealt with was Mrs. Baldasare (not Brent).
5. Attorney Tom Player testified that he was hired by the McKeever firm in February of 1999 and took over an active caseload as well as filed new suits using the name Nu-Best Diagnostic Labs. He soon discovered that throughout the office the styles of the plaintiff’s name contained several variations of the Nu-Best name. While his first concern was that some cases were filed as Nu-Best Diagnostic, Inc. and others were filed as just Nu-Best Diagnostics, his concern was to determine his, “client’s real corporate structure.” He discovered that the true client was Motion X-Ray, Inc. and that it was using an unregistered d/b/a of Nu-Best Diagnostics. In March of 2000, the d/b/a/ was registered and Mr. Player not only moved to amend the style of his misnamed suit, but also advised Mr. McKeever and other lawyers of the client’s true name. Player testified that from March, 2000 on, all the firm’s filings used the Motion X-Ray, Inc. name.
6. Notwithstanding Mr. Player’s discoveries and advisements to his firm, the case at bar continued to be litigated under the name of Nu-Best Diagnostics, Inc. until the August, 2000 voluntary dismissal.7. While no fee agreement was produced specifically as to this lawsuit, testimony and exhibits clearly show that the McKeever lawfirm knew its client(s) and the real party in interest was/were Motion X-Ray, Inc., Dr. Carpentier and Dr. Argall.
8. Both Dr. Carpentier and Dr. Argall, and hence Motion X-Ray, Inc., testified that no effort was made by them to verify Baldasare’s legal ability to conduct x-rays in the state of Florida. Both also testified they assumed it was fine to use any variation of the Nu-Best name because they had bought the franchise.
9. All parties have stipulated that Fla. Stat. 57.105 (1997) should govern the issues in this case.
10. Based upon the above and foregoing, the Court finds that as a matter of law that at the time of filing this lawsuit there was a complete absence of a justiciable issue of both law and fact. Since case law clearly indicates that a “party” responsible for fees and costs under Fla. Stat. 57.105 may include all responsible persons, not just named parties, the Court finds that Motion X-Ray, Inc., France Carpentier and Richard Argall are all individually responsible for State Farm’s fees and costs herein.
11. As to the McKeever law firm, its responsibility or the lack thereof is a more difficult issue. Fla. Stat. 57.105(1) requires that before fees and costs can be imposed, there must be a lack of good faith. Or, put differently, no fees and costs can be found if counsel acted in good faith based upon the client’s representations. This Court has no doubt that the attorneys in the McKeever law firm are persons of integrity and honesty. Further, as Mr. McKeever repeatedly pointed out during the evidentiary hearing herein, there is not the slightest bit of evidence that his firm had any evil or dishonest motive to prosecute this case in the manner it was litigated. However, that is not dispositive of the issue. Black’s Law Dictionary defines good faith, inter alia, as, “Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry.” As counsel for State Farm has pointed out, a lawyer has a duty to investigate before he or she initiates a lawsuit. The question thus becomes, to paraphrase the Watergate hearings, what did the McKeever firm know (or not know) and when did it know it?
a. The firm always knew its clients, the real parties in interest, were France Carpentier and Richard Argall.
b. The firm knew there were numerous fee agreements with its clients; some were signed by Carpentier, some by Argall, some even by Brent Baldasare. Furthermore, several different provider names were not only on the fee agreements, but also as named plaintiffs (as Mr. Player testified) on dozens of lawsuits.
c. The firm knew that the Health Insurance Claim Form it was suing on listed the provider as, “Nu-Best Diagnostic Labs” of Palm Harbor, Florida and that Dr. Carpentier signed as the provider with “signature on file.” However, the same form said the videofluoroscopy was performed at Dr. Darrow’s office in central Florida. Since the firm knew both Dr. Carpentier and Dr. Argall both lived and practiced in Pinellas County and since the firm knew of the relationship between Brent Baldasare and Dr. Carpentier and Dr. Argall, the firm knew or should have known that it was Baldasare who performed the videofluoroscopy on Wickert.
d. Dr. Argall testified that during a deposition in October of 1998 he testified that his business entity was Motion X-Ray, Inc. and that present during said deposition was Mr. McKeever. Dr. Argall further said that all fee agreements were drafted by the law firm.
Had the McKeever law firm made the types of simple inquiry in 1999 that attorney Player made in March, 2000, it would no doubt have determined that it named a totally incorrect party-plaintiff in this lawsuit. Further, simple inquiry regarding Brent Baldasare would have alerted the firm that the videofluoroscopy herein was performed in violation of Florida law and therefore was not eligible for payment by State Farm under the PIP statutes. While it is not pleasurable to sit as a Monday morning quarterback to colleagues in the legal profession, the Court is compelled, on the record before it, to find that the McKeever law firm did not act in good faith based upon its clients’ representations in the filing of this lawsuit.
It is therefore ORDERED AND ADJUDGED that pursuant to Florida Statute 57.105(1) (1997), the Court finds that the following parties are liable in equal amounts for the Defendant’s attorneys fees and costs:
1. Motion X-Ray, Inc.
2. France Carpentier
3. Richard Argall
4. McKeever, Albert & Barth
* * *
