12 Fla. L. Weekly Supp. 568b
Insurance — Personal injury protection — Dismissal — Two dismissal rule — Medical provider is barred from activating third identical suit for same PIP benefits where two prior suits were voluntarily dismissed by provider — Second suit operated as adjudication on merits when served by provider who had previously dismissed identical action in another jurisdiction
THE SPINE & PAIN MEDICINE CENTER, P.A., on behalf of Peter Kolinski, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, a domestic corporation, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 03005765SCNPC. UCN 522003SC005765XXSCSC. March 7, 2005. Dorothy L. Vaccaro, Judge. Counsel: Stanley Gipe, Papa & Gipe, P.A., Clearwater. Charles M. Tillman, St. Petersburg.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED ON “TWO DISMISSAL” RULE
THIS CAUSE was before the Court upon the Defendant’s Motion for Summary Judgment based on the “two dismissal” rule. The Defendant’s written Motion for Summary Judgment argues that the Plaintiff filed a lawsuit in Pasco County, Florida on September 6, 2002, and voluntarily dismissed the action on July 2, 2003. The Defendant then argues that the Plaintiff filed the identical lawsuit, i.e. seeking the same benefits for the identical date of loss, in Pinellas County, Florida on March 13, 2003. The Plaintiff voluntarily dismissed that particular suit on May 20, 2003. The Defendant argues that this pending suit is the identical suit that seeks the same damages as in the two previously dismissed actions. The Plaintiff filed a written response conceding that the lawsuits were identical.
This Court finds that the “two dismissal” rule must be strictly construed. This Court relies on Edmondson vs. Green, 775 So.2d 701 (4th DCA 1999), whereby the court concluded that “If the facts necessary to the maintenance of the latter suit are the same as in the prior dismissed suit, and the judgment sought in each requires the same proof to justify it, then the second suit should be barred by the rule.” In the instant case, the Plaintiff is barred from activating a third identical suit since the second dismissal operated as an adjudication on the merits when served by the Plaintiff who had once previously dismissed the identical action in another jurisdiction. See, Florida Rules of Civil Procedure 1.420(a)(1). It is therefore
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment based on the “two dismissal” rule is hereby granted.
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