11 Fla. L. Weekly Supp. 247c
Insurance — Personal injury protection — Attorney’s fees — Where insurer paid less than full amount billed for services due to calculation error, medical provider filed complaint for balance of what it believed to be a reduced payment without first sending demand letter or attempting to contact insurer, and provider voluntarily dismissed action, insurer is awarded attorney’s fees because provider failed to conduct reasonable pre-suit investigation — Fees to be paid solely by provider where provider’s counsel relied in good faith on alleged material facts presented by provider in support of action
ADVANCED ORTHOPEDIC INSTITUTE, INC., (as Assignee of FRANCES SMITH), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an insurance company authorized to do business in Florida, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 03-5398-SC/Division L. January 5, 2004. Artemus E. McNeil, Judge. Counsel: Gale L. Young, Gale L. Young, P.A., Tampa. Bradley D. Souders.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES TO DEFENDANT
THIS CAUSE, having come on before this Court on October 7, 2003 upon the Defendant’s Motion To Determine Entitlement And/Or Motion To Tax Attorney’s Fees, and the Court having heard argument of counsel for the respective parties, and being otherwise duly advised in the premises, the court finds the following facts:
1. Plaintiff filed a Complaint alleging a breach of contract regarding an automobile accident that occurred on or about June 2, 2002, involving Frances Smith.
2. Plaintiff alleged that Defendant failed to pay for care and treatment rendered by Plaintiff to Frances Smith on August 1, 2002 and August 6, 2002, totaling $235.00.
3. On August 30, 2002, State Farm paid $135.00 to Plaintiff for the August 1, 2002 and August 6, 2002 dates of service and forwarded to Plaintiff a draft in that amount.
4. The “remarks section” of the draft contained the inscription “DOS 8/1-8/6/02.”
5. Plaintiff argued that based on the description, Plaintiff’s amount for services rendered to Francis Smith amounted to a “reduction” and therefore Plaintiff was not required to serve a demand letter pursuant to Florida Statutes, Section 627.736(11) upon Defendant prior to filing suit.
6. Julie Stout, the adjuster who processed the bill for Defendant, testified in an affidavit, and at deposition, that she made an error in computing the amount of the payment that resulted in payment of $135.00 instead of $235.00.
7. Ms. Stout also testified in deposition and by affidavit, that State Farm did not receive a demand letter from Plaintiff prior to the filing of the instant lawsuit. She also testified in deposition that if she had received a demand letter, she would have paid the $100.00 that she neglected, in error, to pay at the time of the original payment.
8. Brenda Mygrant, Plaintiff’s billing representative, testified that State Farm’s payment was a “reduction” and that she instructed her counsel to file suit for the “reduction.” Counsel for Plaintiff relied on the information provided by his client in filing this lawsuit.
9. Ms. Mygrant testified at the hearing that prior to filing of this lawsuit she did not contact, or attempt to contact State Farm about the difference between the amount billed by Plaintiff and the amount paid by Defendant.
10. Ms. Mygrant testified in her affidavit that a demand letter was not required under the statute because the payment was a “reduction.”
11. Plaintiff voluntary dismissed its action and Defendant sought payment of the attorney’s fees and costs that Defendant expended defending against this action pursuant to Florida Statutes Section 57.105.
ORDERED AND ADJUDGED that Defendant’s Motion To Determine Entitlement And/Or Motion To Tax Attorney’s Fees is granted, including an award of prejudgment interest. Plaintiff failed to conduct a reasonable pre-suit investigation prior to the filing of its action. Had Plaintiff conducted a reasonable pre-suit investigation, Plaintiff would have discovered that State Farm’s failure to pay the full amount of Plaintiff’s services was an error.
The Court reserves jurisdiction as to the amount of fees, to be awarded to Defendant if Plaintiff and Defendant are unable to reach an agreement as to the amount. The total amount of fees to be paid by Plaintiff shall be paid solely by Plaintiff as Plaintiff counsel, in good faith, relied upon Plaintiff as to the alleged material facts presented by Plaintiff in support of its action.
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