12 Fla. L. Weekly Supp. 295a
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — No abuse of discretion in denying insurer’s motion for attorney’s fees under section 57.105 against medical provider that filed suit naming wrong PIP carrier where complaint was not frivolous when filed because fact that wrong insurer provided provider with claim number, sent correspondence on its letterhead, received claim for medical services rendered to insured, and failed to advise provider or insured that it did not issue insured’s policy led to reasonable inference that wrong insurer issued insured’s PIP policy — Further, where provider filed voluntary dismissal without prejudice soon after it received affidavit identifying correct defendant, wrong insurer was not required to defend against frivolous suit — Appellate fees — Provider’s request for appellate attorney’s fees is denied where request was not made in separate motion, but in answer brief, and request does not specify particular contractual, statutory or other substantive basis for award of fees
ALLSTATE INSURANCE COMPANY, Appellant, v. ADVANTAGE MEDICAL DIAGNOSTIC, INC., on behalf of Assignee, Shelly Groom, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-03-55. L.C. Case No. 2000-SC-1941. January 6, 2005. Appeal from the County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: David W. Molhem, Molhem & Fraley, P.A., Tampa, for Appellant. Frank Allen, Allen & Dill, P.A., Orlando, for Appellee.
(Before HENSON, J. ADAMS, and GRIDLEY, JJ.)
FINAL ORDER AFFIRMING TRIAL COURT’S ORDER DENYING MOTION FOR ATTORNEY’S FEES
(PER CURIAM.) Appellant, Allstate Insurance Company (“Allstate”), timely appeals the trial court’s order denying its motion for attorney’s fees pursuant to section 57.105, Florida Statutes (1999). This Court has jurisdiction. See Fla. R. App. P. 9.030(c)(1)(A). We dispense with oral argument.
Shelly Groom was injured in an automobile accident in December 1999. She sought treatment from a doctor who referred her to appellee, Advantage Medical Diagnostic, Inc. (“Advantage”). Groom completed forms for Advantage that asked for the name of her insurance company and a claim number. Groom called Allstate and got a claim number, which she gave to Advantage along with a referral from her doctor for the MRI. Groom received subsequent correspondence from Allstate that was sent on Allstate’s letterhead. Allstate received the claim filed by Advantage for Groom’s MRI.
On March 9, 2000, Advantage filed a complaint, interrogatories, a request to produce, and a request for admissions against Allstate, on behalf of Shelly Groom, seeking PIP benefits pursuant to an automobile insurance policy presumably issued by Allstate. Allstate filed a motion to dismiss stating it was not the proper party because Allstate Indemnity Company, a separate and distinct company from Allstate, issued the insurance policy. Allstate also objected to Advantage’s requests for admissions on this basis. After the hearing on Allstate’s motion to dismiss for failure to name the proper party, it appears that the trial court denied the motion, although an order denying the motion does not appear in the Record.
On September 15, 2000, Allstate filed a motion for summary judgment on the ground that it was not the proper party, and on September 27, 2000, Allstate filed the affidavit of Jim Parese, which stated that Allstate did not issue Groom’s insurance policy. Advantage voluntarily dismissed its complaint against Allstate without prejudice on September 29, 2000.
On October 3, 2000, Allstate filed a motion for attorney’s fees pursuant to section 57.105, Florida Statutes (1999). A hearing was held on Allstate’s motion on October 16, 2003, and the trial court denied Allstate’s request for attorney’s fees and costs. Allstate appeals the order.
In reviewing the trial court’s order denying Allstate’s motion for attorney’s fees under section 57.105, this Court must “look to see if the trial court abused its discretion . . . .” Fisher v. John Carter & Assoc., Inc., 864 So. 2d 493, 497 (Fla. 4th DCA 2004). Under the abuse of discretion standard, this Court “must affirm the order of the trial court if reasonable people could differ as to the propriety of the action taken.” Pellar v. Granger Asphalt Paving, Inc., 687 So. 2d 282, 285 (Fla. 1st DCA 1997).
Allstate argues that it is entitled to attorney’s fees pursuant to Florida Statute section 57.105 (1999), because Advantage failed to do a basic investigation to identify the correct defendant before filing suit. Allstate claims that it repeatedly advised Advantage that it did not insure Groom, and therefore Advantage knew or should have known that it sued the wrong party.
Advantage responds that it had an adequate factual basis to support filing the complaint. Advantage points out that Groom called Allstate to report her car accident, and she was given an Allstate claim number. Groom received correspondence sent on Allstate’s letterhead. Moreover, Allstate accepted a medical claim form filed by Advantage, which sought payment for medical services rendered to Groom.
Section 57.105(1), Florida Statutes (1999), states:
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
In determining whether an award of attorney’s fees under section 57.105 is appropriate, the trial court must utilize a two-part test. Weatherby Assoc., Inc. v. Ballack, 783 So. 2d 1138, 1142 (Fla. 4th DCA 2001). “First, the court must determine whether the suit was frivolous when initially filed. If it was not, then the court must determine whether the suit became frivolous after the suit was filed.” Id. at 1142.
In Weatherby, the plaintiff sued its ex-employee for breach of a non-compete agreement. Id. at 1140. Before filing suit, the plaintiff’s attorney contacted the ex-employee’s attorney and was told that the ex-employee was not working for the plaintiff’s competitors. Id. The plaintiff’s attorney researched the matter, but could not verify the information given to him by the ex-employee’s attorney. Id. The plaintiff filed suit, but during discovery, deposition testimony established that the ex-employee was not working for the plaintiff’s competitors. Id. The defendants moved for summary judgment and attorney’s fees pursuant to section 57.105. Id. at 1140-41. Two weeks later, the plaintiff voluntarily dismissed the claim. Id. at 1141.
Under the two-part test set out above, the appellate court determined that the investigation performed by the plaintiff’s attorney before suit was filed could have led to the reasonable inference that the ex-employee’s attorney was making misrepresentations about the ex-employee’s new employer. Id. at 1142. The court held that the state of the evidence prior to suit created a justiciable issue of fact, and therefore, the suit was not frivolous when initially filed. Id. As to the second part of the test, however, the court held that the evidence established during a witness’ deposition eliminated any reasonable inference that the ex-employee was working for plaintiff’s competitors, leaving no justiciable issue of fact or law, and making the suit frivolous from that point forward. Id. at 1142-43. The court concluded that the trial court should have awarded the ex-employee attorney’s fees from the point in time that she had to defend against a frivolous suit, rather than from the date that the suit was filed. Id. at 1143.
Prior to filing suit, the record supports Advantage’s claims. Allstate provided Groom with a claim number, sent Groom correspondence on its letterhead, received a medical claim form for the medical services rendered to Groom, and failed to advise Groom or Advantage that it did not issue Groom’s automobile insurance policy. These facts, like the facts in Weatherby, lead to a reasonable inference that Allstate issued the subject insurance policy, which created a justiciable issue of fact such that the suit was not frivolous at the time it was filed. Thus, the trial court did not abuse its discretion in finding that the complaint was not frivolous when it was filed.
In the instant case, like Weatherby, evidence was subsequently disclosed that eliminated any reasonable inference that Allstate issued the insurance policy. In the case at bar, however, unlike Weatherby, Advantage filed a voluntary dismissal without prejudice soon after it received the affidavit identifying the correct defendant. Consequently, Allstate was not forced to defend against a frivolous suit. Therefore, Allstate is not entitled to attorney’s fees under section 57.105, and the order denying the request is affirmed.
In the Answer Brief, Advantage requests an award of attorney’s fees. Allstate moves to strike the request. Rule 9.400(b) of the Florida Rules of Appellate Procedure sets forth the procedure for awarding attorney’s fees in an appellate proceeding. In construing this rule, the Florida Supreme Court held:
that a party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court’s order in support of a motion for attorney’s fees for services rendered in an appellate court.
United Serv. Auto. Assoc. v. Phillips, 775 So. 2d 921, 922 (Fla. 2000).
“[A]ppellate attorney’s fees must be requested by filing a separate motion.” McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Assoc., 758 So. 2d 692, 696 (Fla. 4th DCA 1999) (request for attorney’s fees based upon a single sentence in an appellate brief insufficient).
In the instant case, Advantage requests an award of attorney’s fees and costs associated with this appeal in one sentence in its answer brief. Advantage did not specify the particular contractual, statutory, or other substantive basis for the award of appellate attorney’s fees. Advantage did not file a separate motion requesting appellate attorney’s fees. Consequently, under the authority discussed above, Advantage is not entitled to appellate attorney’s fees, its request is denied, and Allstate’s motion to strike the request is granted.
THEREFORE, based upon the foregoing, it is hereby ORDERED and ADJUDGED that:
1. The trial court’s order denying Appellant, Allstate Insurance Company’s, motion for attorney’s fees is AFFIRMED.
2. Appellant Allstate Insurance Company’s motion to strike Appellee Advantage Medical Diagnostic, Inc.’s, request for appellate attorney’s fees is GRANTED.
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