11 Fla. L. Weekly Supp. 567b
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Provider/assignee and counsel knew or should have known that action was not supported by material facts necessary to establish claim as to named defendant where provider and counsel knew name of insured’s PIP carrier from drafts paid to provider yet sued wrong insurance company; provider was given notice that defendant did not insure the insured in defendant’s answer, motion for sanctions, and motion for summary judgment; and provider did nothing in response to pleadings and continued action until court indicated it was granting motion for summary judgment — Defendant is awarded fees and costs to be paid equally by provider and counsel
RICKY P. LOCKETT, D.O., P.A. D/B/A ORTHOPEDIC INJURY MANAGEMENT, on behalf of Dorthy Martin, Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 03-006579-SC-SPC. March 29, 2004. Karl B. Grube, Judge. Counsel: Gale L. Young, Gale L. Young, P.A., Tampa. Angela Stone.
ORDER GRANTING ENTITLEMENT TO ATTORNEY’S FEES AND COSTS TO DEFENDANT
THIS CAUSE, having come on before this Court on March 25, 2004, upon the Defendant’s Motion to Determine Entitlement to Attorney’s Fees and Costs, and the Court having heard argument of counsel for the respective parties, and being otherwise duly advised in the premises, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion to Determine Entitlement to Attorney’s Fees and Costs is GRANTED.
FINDINGS OF FACT
1. The draft(s) paid to Plaintiff by Progressive Express Insurance Company revealed the name of the proper party Defendant regarding treatment rendered to Dorthy Martin.
2. Plaintiff failed to sue the proper party and instead, filed suit against Progressive Consumers Insurance Company.
3. Defendant, Progressive Consumers Insurance Company, placed Plaintiff on notice that it did not insure Dorthy Martin when it served its Answer on October 14, 2003.
4. On October 17, 2003, Defendant further noticed Plaintiff that it did not insure Dorthy Martin when it served its Motion Seeking Sanctions Pursuant to Florida Statutes §57.105.
5. Plaintiff did nothing in response to these pleadings and continued its action, after being placed on notice that it had sued the wrong Defendant.
6. On November 19, 2003, Defendant served its Motion for Summary Judgment including the Affidavit of Edward Hulsey, further placing Plaintiff on notice that it did not insure Dorthy Martin, and that Plaintiff had sued the wrong Defendant.
7. Plaintiff continued its action against the wrong Defendant and appeared for hearing on Defendant’s Motion for Summary Judgment on December 19, 2003.
8. The Court granted Defendant’s Motion for Summary Judgment finding that Plaintiff sued the wrong insurance company and that Defendant never insured Dorthy Martin.
9. Prior to the hearing on Defendant’s Motion for Summary Judgment Plaintiff failed to file any pleading requesting leave to amend its Complaint and proceeded knowing that it had sued the wrong Defendant.
10. Only at the last minute, when the Court indicated it was granting Defendant’s Motion for Summary Judgment, did Plaintiff make an ore tenus motion to amend its Complaint without filing any written request for amendment and without indicating to the Court what the amendment would be.
11. The Court entered Final Judgment in Favor of Defendant on December 29, 2003. [11 Fla. L. Weekly Supp. 239a]
12. 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 filing of Defendant’s Answer, Motion Seeking Sanctions and its Motion for Summary Judgment, that its 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 then-existing law to those material facts as to the named Defendant.
13. The Court grants Defendant’s motion and awards attorney’s fees and costs against Plaintiff and orders that Plaintiff is 50% responsible for Defendant’s attorneys fees and costs, and Plaintiff’s counsel, Paul Puzzenghera, Esquire, as attorney of record, is 50% responsible for Defendant’s attorneys fees and costs.
14. The Court reserves jurisdiction as to the amount of attorney’s fees to be awarded if the parties cannot agree to an amount.
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