12 Fla. L. Weekly Supp. 390b
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Motion for attorney’s fees following voluntary dismissal of suit based on premature demand letter — Where courts differ on whether filing PIP suit based on premature demand letter requires dismissal or abatement, issue is justiciable, and motion for fees is denied
A1 MOBILE DIAGNOSTIC SERVICES, INC., a /a/o Namon Grooms, Jr., Plaintiff, vs. INFINITY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-13509 COSO 53. February 4, 2005. Robert W. Lee, Judge. Counsel: Douglas P. Johnson, Davie, for Plaintiff. Steven J. Leiter, Fort Lauderdale, for Defendant.ORDER DENYING DEFENDANT’S MOTIONFOR ATTORNEY’S FEES AND COSTS
This cause came before the Court on February 2, 2005 for hearing of the Defendant’s Motion for Attorney’s Fees and Costs, and the Court’s having reviewed the Motion and entire Court file, heard argument, reviewed the relevant legal authorities, and been sufficiently advised in the premises, finds as follows:
Background. On June 18, 2004, the Defendant filed its complaint for unpaid PIP benefits against Defendant, an Alabama company. The Plaintiff, however, prematurely made the statutory demand for payment of overdue benefits, missing the date by a few days. In its Answer filed August 30, 2004, the Defendant denied liability, but did not specify the basis. At about the same time, the Defendant served its Statutory Notice of Intent to seek fees pursuant to Florida Statute §57.105. The Defendant alleged two grounds: that the premature serving of the demand was clear on the face of the demand, and that the insured resided with a relative who owned a motor vehicle for which PIP insurance was provided. On October 14, 2004, the Defendant filed its Motion for Summary Judgment, asserting among other things that the policy issued was actually a Mississippi policy, which unlike Florida does not provide personal injury protection benefits. This ground was not previously specified in the Notice of Intent to seek fees.
On November 11, 2004, upon discovering no liability existed under the Mississippi policy, the Plaintiff served its Notice of Voluntary Dismissal. Thereafter, on November 29, 2004, the Defendant filed its Motion for Attorney’s Fees and Costs incorporating the grounds set forth in the Notice of Intent to seek fees.
Conclusions of Law. Under Florida Statute §57.105(1), a party is entitled to an award of fees if the other party “knew or should have known that a claim [. . .] when initially presented to the court or at any time before trial [w]as not supported by the material facts necessary to establish the claim [. . .] or [w]ould not be supported by the application of then-existing law to those material facts.” In the instant case, the Defendant argues that because the Plaintiff should have known that the demand was premature, it is responsible for attorney’s fees for the Defendant having to defend this suit.
The Plaintiff acknowledges that it did not take a dismissal based on the demand issue. Rather, it dismissed the case because of the lack of coverage under the Mississippi policy. The issue therefore for the Court is whether the premature demand letter issue is sufficient to meet the standard set forth in Fla. Stat. §57.105.
The parties acknowledge that no controlling appellate authority exists which specifically addresses the effect of filing a PIP suit based on a premature demand. At least one trial level court has apparently ruled that the premature demand is fatal to the suit, requiring dismissal. This Court, however, is aware of analogous authority in other instances in which abatement may be appropriate, or in which an analysis of prejudice may be required. This Court need not make a decision on this issue. Suffice it to say at this point the issue is justiciable. The Plaintiff still may have been able “to establish the claim.” Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Attorney’s Fees and Costs is DENIED.
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