11 Fla. L. Weekly Supp. 938a
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Where medical provider filed suit against wrong insurer, and despite court order allowing provider to amend complaint to name proper insurer, provider continued to litigate against wrong insurer, defendant insurer is entitled to award of attorney’s fees from date of filing of complaint through date of pre-trial conference at which court granted motion to dismiss — Defendant is not awarded fees from date of pre-trial conference through date of entitlement hearing as defendant is not entitled to fees for litigating amount of fee award
HANDS FOR HEALTH OF ORANGE COUNTY, a/a/o E. Scherer, Plaintiff, v. HARTFORD INSURANCE COMPANY OF THE SOUTHEAST, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-003631. August 3, 2004. Donald L. Marblestone, Judge. Counsel: Robert D. Bartels, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando. Eduardo Rodriguez.
ORDER DETERMINING DEFENDANT’S ENTITLEMENT TO ATTORNEY’S FEES AND COSTS
THIS CAUSE, having come before the Honorable Donald L. Marblestone upon Defendant’s Motion for Attorney’s Fees and Costs Pursuant to Florida Statute §57.105, and the Court, after hearing argument of counsel and being otherwise fully advised in the premises, states as follows:
FINDINGS OF FACT:
1. On or about August 25, 2003, the Plaintiff, Hands for Health of Orange County a/a/o E. Scherer (“HFH”), filed suit against the Defendant, Hartford Insurance Company of the Southeast, for the recovery of personal injury protection benefits under a purported insurance contract.
2. Defendant, Hartford Insurance Company of the Southeast, did not issue a policy of insurance which covered E. Scherer.
3. On September 12, 2003, September 19, 2003, and September 25, 2003, Defendant advised Plaintiff’s counsel that Plaintiff filed suit against the wrong corporate Defendant.
4. On September 30, 2003, the parties attended a pre-trial conference at which time the Defendant advised HFH that it sued the wrong corporate Defendant.
5. On October 24, 2003, the Court entered an order allowing the Plaintiff to amend its Complaint and named the proper Defendant, which was Property and Casualty Insurance Company of the Hartford.
6. Despite the Court’s October 24, 2003 order, HFH did not amend its Complaint.
7. On December 23, 2003, Defendant served its Motion for Attorney’s Fees and Costs Pursuant to Florida Statute §57.105 alleging that the Plaintiff filed suit against the wrong corporate Defendant, and despite a Court order allowing the Plaintiff to amend its Complaint, the Plaintiff continued to litigate the case against the wrong corporate Defendant.
8. On January 15, 2004, Defendant served a Notice of Filing its December 23, 2003 correspondence and Motion for Attorney’s Fees Pursuant to Florida Statute §57.105.
9. On January 15, 2004, Defendant responded to Plaintiff’s discovery, once again asserting that it was an improper party to the cause of action.
10. On January 30, 2004, Defendant filed a Motion for Summary Judgment, once again informing Plaintiff that it had sued the improper Defendant and that HFH was not a registered corporation with the State of Florida, nor a registered fictitious name with the State of Florida.
11. On January 30, 2004, Defendant filed an Affidavit in support of its Motion for Summary Judgment, once again informing Plaintiff that it had sued the improper Defendant.
12. On February 11, 2004, Plaintiff filed its Motion for Leave to Amend its Complaint and Second Amended Complaint.
13. On February 17, 2004, the parties attended a pre-trial conference at which time the Court granted Defendant’s Ore Tenus Motion to Dismiss.
14. On February 25, 2004, the Court entered an Order Granting Defendant’s Ore Tenus Motion to Dismiss and reserved jurisdiction to determine Defendant’s entitlement to attorney’s fees and costs.
15. The Defendant complied with the conditions precedent pursuant to Florida Statute §57.105.
It is hereby ORDERED AND ADJUDGED that:
1. Defendant’s Motion to Tax Attorney’s Fees and Costs Pursuant to Florida Statute §57.105 is hereby GRANTED. Plaintiff and Plaintiff’s counsel knew or should have known that its action was not supported by the material facts necessary to establish its claim. Even if Plaintiff did not know at the time of filing its Complaint, Plaintiff and its counsel knew, or should have known, as of the Defendant’s correspondences, Motion for Summary Judgment, Motion for Attorney’s Fees, the Court’s October 24, 2003 order, and the Defendant’s Affidavit filed in support of its Motion, that HFH’s action was not supported by the material facts necessary to establish its claim or that the claim would not be supported by the application of the then existing law to those material facts as to the named Defendant.
The Court grants Defendant’s Motion and awards attorney’s fees and costs against HFH and orders that Plaintiff is fifty percent (50%) responsible for Defendant’s attorney’s fees and costs and Plaintiff’s counsel, the Law Office of James Richard Hooper, P.A., as attorney of record, is fifty percent (50%) responsible for Defendant’s attorney’s fees and costs. The Defendant is entitled to attorney’s fees and costs from the date of the filing of this Complaint up to and including the date of the pre-trial conference on February 17, 2004.
Defendant’s request for attorney’s fees and costs from the date of the pre-trial conference, February 17, 2004, through the entitlement hearing, July 8, 2004, is hereby DENIED. Pursuant to Allstate Indemnity Co. v. Jeffrey Hicks, 5th District Court of Appeal opinion filed June 25, 2004 [29 Fla. L. Weekly D1523a], this Court is of the opinion that the Defendant is not entitled to fees for litigating the amount of attorney’s fees to be awarded.
Counsel for the Defendant shall have thirty (30) days from the date of the order to serve Plaintiff with an affidavit of Defendant’s counsel’s fees and costs. The Court reserves jurisdiction to determine the amount of Defendant’s attorney’s fees and costs to be awarded if the parties cannot agree to an amount. If the parties cannot agree to an amount, then the parties shall set a hearing within sixty (60) days from the date of this order.
Defendant, Hartford Insurance Company of the Southeast, shall go hence without day.
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