12 Fla. L. Weekly Supp. 935b
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Claim or defense not supported by material facts or by application of then-existing law to those facts — Complaint in which provider named policyholder rather than covered patient to whom it provided medical services resulting from accident was not so frivolous as to compel award of attorney’s fees under section 57.105 — Provider’s claims were supported by existing law, notwithstanding insurer’s argument that provider could not sue for payment because patient revoked her assignment of benefits to provider — No error in denying insurer’s motion for attorney’s fees
MERCURY INSURANCE COMPANY, Appellant/Defendant, vs. TWO G’S OF BROWARD d/b/a UNIVERSITY REHABILITATION CENTER a/a/o ARCHILLE ST. SURIN, Appellee/Plaintiff. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-13682 CACE 02. L.T. Case No. 03-01-7714-COCE-49. June 20, 2005.
OPINION
(VICTOR TOBIN, J.) THIS CAUSE having come before the Court on the Appellant’s direct appeal from the County Court arises from a denial of Mercury Insurance Company’s (Mercury) Motion for Attorney’s Fees under section 57.105 of the Florida Statutes (2003). This statute provides
. . . the court shall award a reasonable attorney’s fee to be paid to the prevailing party . . . . [upon] the court find[ing] 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.
§ 57.105 (2003). Mercury claims that the court was in error by refusing to award attorney fees to them based on this statute. The standard to review the court’s decision is abuse of discretion. Gahn v. Holiday Property Bond, Ltd., 826 So. 2d 423, 425-26 (Fla. 2d DCA 2002). To determine whether the trial court abused its discretion in denying Mercury’s motion for fees, it must be determined if Two G’s of Broward d/b/a University Rehabilitation Center’s (Two G’s) claim was supported by material facts or existing law. Id.
The initial case arose from an assignment of PIP benefits by Evelyn Charles to Two G’s for medical services resulting from an accident. Although Evelyn Charles was the person covered by the PIP benefits, Achille St. Surin was the policy holder. On April 17, 2003, Evelyn Charles assigned the benefits to Two G’s and Two G’s provided services. On June 9, 2003, Evelyn Charles apparently revoked the assignment to Two G’s. On September 2, 2003, Two G’s filed suit against Mercury to recover payment for services provided to Evelyn Charles, however, Two G’s did not file suit in the appropriate party’s name, using the name of the policy holder instead of the person receiving the benefits of the policy. On December 18, 2003 Two G’s amended the complaint to reflect the proper patient. After various motions, the Two G’s dismissed the motion without prejudice in February, 2004.
As the court noted at the hearing for the Motion for Attorney Fees on July 7, 2004, it is not uncommon for the wrong plaintiff to be listed as a party, nor is it uncommon “for cases to be amended and/or dismissed without prejudice for refiling.” (Tr. of Hr’g Mot. For Attorney’s Fees at A.31). Naming the wrong party is not so frivolous as to compel an award of attorney’s fees under section 57.105 of the Florida Statutes.
Additionally, Two G’s claim is supported by existing law. Mercury claims that because Evelyn Charles revoked her assignment of benefits to Two G’s that Two G’s cannot sue for payment for services provided. However, once an assignment is made by a covered patient to a medical provider, that assignment is irrevocable. Rittman v. Allstate Ins. Co., 727 So. 2d 391, 394 (Fla. 1st DCA 1999); State Farm Mut. Auto. Ins. Co. v. Gonnella, 677 So. 2d 1355, 1356-7 (Fla. 5th DCA 1996); State Farm Fire and Casualty Co. v. Ray, 556 So. 2d 811, 813 (Fla. 5th DCA 1990). An assignment by the patient to Two G’s allows Two G’s to sue for payment of medical treatment the claimant received, regardless of the fact that the assignment was later revoked.
Based on review of the record and case law, this is not a case that merits an award of attorney fees under Florida Statutes section 57.105 and therefore, it is ORDERED AND ADJUDGED that the Trial Court’s Judgment is AFFIRMED.
* * *
