11 Fla. L. Weekly Supp. 446b
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Where insurer provided notice that provider/assignee stated wrong date of accident in complaint, insurer properly paid all bills with regard to correct date of accident, and provider failed to satisfy condition precedent of pre-suit demand letter, provider/assignee knew or should have known that claim as stated in complaint was not supported by material facts necessary to establish claim nor was it supported by application of law to those facts — Insurer is awarded attorney’s fees paid in equal amounts by provider and provider’s counsel unless counsel is able to show she acted in good faith based on representations of client as to existence of material facts
ROBERT C. NUCCI, M.D. on behalf of Esperanza Moore, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 02-009692-SC-SPC. March 4, 2004. Karl Grube, Judge. Counsel: Angela Stone. Michele C. Pittman.
ORDER GRANTING DEFENDANT’S ENTITLEMENT TO ATTORNEY’S FEES AND COSTS PURSUANT TO FLORIDA STATUTES § 57.105
THIS CAUSE came on to be heard before this Court on February 3, 2004 upon Defendant’s Motion to Determine Entitlement And/Or Motion to Tax Attorneys’ Fees, and the Court having heard argument of counsel and being otherwise duly advised in the premises, thereupon found and ruled as follows:
1. The Plaintiff filed its Complaint alleging a breach of contract regarding an automobile accident that occurred on or about September 27, 2002. Defendant asserted that it never received any notice of accident involving Esperanza Moore for a September 27 accident date, but asserted that it did receive notice of an August 27, 2002 accident. Defendant placed Plaintiff on notice that Plaintiff’s Complaint contained an incorrect date of accident in both Defendant’s Amended Answer and. Defendant’s Motion Seeking Sanctions Pursuant to Florida. Statutes, Section 57.105, which were both served upon Plaintiff on February 28, 2003. Plaintiff failed to amend Plaintiff’s Complaint to include the correct date of accident, and voluntarily dismissed his case on June 27, 2003.
2. The uncontroverted Affidavit of B.J. Griffith presented by Defendant demonstrated that Defendant properly paid all bills submitted by Plaintiff with regard to the August 27, 2002 accident date. Plaintiff did not produce any evidence demonstrating that bills were outstanding or improperly processed by Defendant. Because Defendant properly paid all bills pursuant to Florida Statutes § 627.736, Plaintiff’s lawsuit was without merit.
3. Defendant also produced uncontroverted evidence that Defendant did not deny, reduce any bill, or suspend any benefits regarding the accident of August 27, 2002. As such, Plaintiff was required to serve Defendant with a demand letter pursuant to Florida Statutes § 627.736(11). The Affidavit of B.J. Griffith demonstrated and Plaintiff admitted, that Plaintiff never served a pre-suit demand letter upon Defendant before the filing of Plaintiff’s lawsuit as required by Florida Statutes § 627.736(11). Since Plaintiff failed to comply with a condition precedent to the filing of its action by failing to serve a pre-suit demand letter under Florida Statutes § 627.736(11), Plaintiff’s action was premature.
4. The Court further finds that the Defendant complied with the procedural requirements to recover fees and costs under Florida Statutes § 57.105(4). The Defendant placed Plaintiff on notice that Plaintiff’s Complaint contained the wrong date of accident, that Defendant did not reduce, deny, or suspend any benefits with regard to the accident of August 27, 2002, and that Plaintiff failed to satisfy a condition precedent by failing to serve a pre-suit demand letter by serving its Motion Seeking Sanctions Pursuant to Florida Statutes Section 57.105 upon Plaintiff on February 28, 2003. Plaintiff failed to avail itself of the “safe-harbor” provision of Section 57.105(4) by failing to dismiss its case or withdraw its claims during the 21 day period after being served with Defendant’s motion. The Defendant subsequently filed its Motion Seeking Sanctions Pursuant to Florida Statutes Section 57.105 with the Court on March 21, 2003.
5. The Court finds that the Plaintiff knew or should have known that the Plaintiff’s claim, as stated in Plaintiff s Complaint, was not supported by the material facts necessary to establish the claim or defense, nor was it supported by the application of then existing law to those material facts, as Plaintiff stated the wrong date of accident in its Complaint, the Defendant properly paid all bills with regard to the correct date of accident, and the Plaintiff failed to meet a condition precedent to filing suit by failing to serve a pre-suit demand letter.
WHEREFORE, it is ORDERED AND ADJUDGED that Defendant’s Motion to Determine Entitlement And/Or Motion to Tax Attorneys’ Fees is GRANTED. The Court awards reasonable attorney’s fees to be paid to the Defendant in equal amounts by the Plaintiff and the Plaintiff’s attorney. However, if the Plaintiff’s attorney shows that he or she is not personally responsible because he or she has acted in good faith, based upon the representations of his or her client as to the existence of material facts, pursuant to Florida Statutes § 57.105(1)(b), the Plaintiff shall be responsible in full for the reasonable attorney’s fees awarded. The Court reserves jurisdiction as to the amount of attorney’s fees, to be determined at a fee hearing at some later date and time should the parties not reach an agreement as to the amount.
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