11 Fla. L. Weekly Supp. 736a
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Attorney’s fees and costs are awarded where medical provider was on notice of frivolity of suit against wrong insurer when defendant insurer served motion for sanctions identifying proper insurer, yet provider did not file motion to amend its complaint until 112 days after receiving motion for sanctions — Because provider abused its privilege to amend by waiting almost three months after finding out that it sued the wrong insurer, and defendant insurer has been prejudiced by incurring unnecessary expense of defending suit, motion to amend complaint to name proper insurer is denied with prejudice
MANY HEALTH, INC. A/a/o Ramon F. Leira, Plaintiff, v. HARTFORD CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03 13269 (5). March 18, 2004. Roger Silver, Judge. Counsel: Sadie Naveo, for Plaintiff. Jeffrey B. Tutan and Drew A. Stoller, Roig, Kasperovich & Tutan, P.A., Deerfield Beach, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SANCTIONS UNDER FLORIDA STATUTE 57.105
THIS CAUSE having come to be heard before this Court on Defendant’s Motion for Sanctions under Florida Statute 57.105, on February 24, 2004, and the court having been appraised by all parties, it is therefore ORDERED AND ADJUDGED as follows:
FINDINGS OF FACT
1. That Plaintiff filed suit on July 28, 2002 against Defendant, Hartford Casualty Insurance Company.
2. That in September, 2003, Defendant drafted its Motion for Sanctions under Florida Statute 57.105, advising Plaintiff that it sued the wrong Defendant. Said Motion also advised Plaintiff that the correct Defendant entity is Hartford Insurance Company of the Midwest.
3. That on or about September 25, 2003, Plaintiff received Defendant’s Motion for Sanctions pursuant to Florida Statute Section 57.105, as evidenced by a certified mail return receipt, article number 7003 1680 0000 2188 5764.
4. That twenty-one (21) days passed wherein Plaintiff did not dismiss its claim, move to amend its complaint, or otherwise rectify the filing of its suit against the wrong Defendant.
5. That on or about October 17, 2003, more than twenty-one (21) days after Plaintiff was in receipt of Defendant’s Motion for Sanctions under Florida Statute Section 57.105, Defendant filed said Motion with the Court.
6. That on October 30, 2003, Defendant noticed for hearing its Motion for Sanctions under Florida Statute 57.105. Said motion was set for hearing on January 15, 2004.
7. That on or about November 12, 2003, Defendant re-noticed for hearing, Defendant’s Motion for Sanctions under Florida Statute Section 57.105. (Plaintiff’s Notice of Hearing dated October 30, 2003 incorrectly stated the location of the hearing. Defendant’s re-notice of hearing dated November 12, 2003 changed the location only.)
8. That on January 9, 2004, Defendant re-noticed hearing on Defendant’s Motion for Sanctions under Florida Statute Section 57.105, scheduling same for February 24, 2004. The hearing was re-noticed at the request of the court, as the presiding judge was not available for the January 15, 2004 hearing.
9. That on January 15, 2004, Plaintiff filed its Motion for Leave to Amend Complaint in this cause, attaching to same its proposed amended complaint.
10. That on January 23, 2004, Defendant filed its Notice of Filing policy of insurance in support of Defendant’s Motion for Sanctions under Florida Statute Section 57.105. Said policy of insurance was previously provided to Plaintiff on October 21, 2003 in Defendant’s responses to Plaintiff’s First Request to Produce.
11. That the attorney’s name who appears on the certificate of service of the original complaint is Sadie Naveo, Esq. Sadie Naveo’s name also appears on Plaintiff’s Motion to Amend Complaint filed January 15, 2004.FINDINGS OF LAW
Defendant has filed a Motion for Sanctions under Florida Statute 57.105. The ground for sanctions in Defendant’s Motion is that Plaintiff filed suit against the wrong Defendant. Section 57.105(4) reads:
(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within twenty-one (21) days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. F.S. 57.105. [Emphasis added]
This statute, as amended to include the twenty-one (21) day requirement in paragraph four (4), is intended to notify the non-moving party notice of the intent to seek sanctions, and provide the non-moving party a specific time requirement in which to correct, change or withdraw its actions which gave rise to the Motion for Sanctions. In the present case, Plaintiff was on notice that it sued the wrong Defendant at least 112 days prior to filing its Motion to Amend Complaint. This exceeds the twenty-one (21) day notice requirement by ninety-one (91) days.
The first notice to Plaintiff was written correspondence to Plaintiff’s counsel dated September 20, 2003, enclosing its Motion for Sanctions. This was received via certified mail by Plaintiff on September 25, 2003. On October 17, 2003, Defendant filed its Motion for Sanctions with the court. Then, on October 30, 2003, Defendant noticed its Motion for Sanctions for hearing. On November 12, 2003, Defendant Re-Noticed for hearing Defendant’s Motion for Sanctions. Finally, on January 9, 2004, Defendant again re-noticed for hearing Defendant’s Motion for Sanctions. Thus, Plaintiff was in receipt of at least five (5) documents submitted by Defendant, relating to Defendant’s Motion for Sanctions and Plaintiff’s cause of action filed against the wrong Defendant. Each time Defendant served a notice or pleading regarding its motion, Plaintiff took no action at all, forcing Defendant to continue litigating its Motion to Dismiss. Additionally, Defendant provided its policy of insurance at issue in this matter, in response to Plaintiff’s Request to Produce, as early as October 21, 2003. This policy identified the correct corporate entity that issued said policy.
On January 15, 2004, the date on which Defendant’s Motion for Sanctions was originally to be heard; Plaintiff filed its Motion to Amend. Therefore, notwithstanding that Plaintiff did finally file a Motion to Amend its Complaint (albeit 112 days after receiving Defendant’s Motion for Sanctions) Plaintiff caused an unnecessary delay in the litigation of this matter, and unnecessary time and expense incurred by Defendant as a result of Plaintiff suing the wrong Defendant. More importantly, Plaintiff’s suit against Hartford Casualty Insurance Company was void of any justiciable issues of fact or law. Plaintiff was on notice of the frivolity of its suit when Defendant initially served its Motion for Sanctions, wherein Defendant identified the proper defendant.
While Plaintiff makes argument that two attorneys left Plaintiff’s firm around the time that Defendant served its Motion to Dismiss and 57.105 Sanctions, this court takes notice that Sadie Naveo is the attorney whose signature appears on both the original complaint and Motion to Amend. It is clear that the attorney handling this matter is not one of those who left Plaintiff’s firm.
Also at issue before this Court is Plaintiff’s Motion to Amend. Plaintiff attaches its Amended Complaint to its Motion, which mirrors the original complaint but for the change in Defendants. Many courts throughout the State have found that Motions to Amend shall be granted liberally, with certain exceptions. These courts have found that no abuse of discretion exists in situations where allowing the amendment would prejudice the opposing party, the privilege has been abused, or amendment would be futile. See, Video Independent Medical Examination, Inc. v. City of Weston, 792 So.2d 680 (4thDCA 2001). Unlike in Video, the Plaintiff in the present cause of action has abused its privilege to amend by waiting almost three months after finding out that it sued the wrong defendant. Additionally, Defendant in the present case has been prejudiced by incurring the unnecessary expense of defending a suit which it never should have been a party to.
Because Plaintiff failed to amend its complaint or dismiss this cause of action within twenty-one (21) days after receipt of Defendant’s Motion for 57.105Sanctions, IT IS HEREBY ORDERED AND ADJUDGED THAT DEFENDANTS MOTION FOR 57.105SANCTIONS IS HEREBY GRANTED. Defendant is entitled to reasonable attorneys’ fees and costs from inception of this suit through February 24, 2004. The fees and costs will be determined at a later fee hearing. This Court retains jurisdiction over fees and costs. IT IS FURTHER ORDERED AND ADJUDGED THAT PLAINTIFF’S MOTION TO AMEND IS DENIED, WITHOUT PREJUDICE.
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