13 Fla. L. Weekly Supp. 167a
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Where insurer stated in response to demand letter that bills had not been paid due to insured’s failure to attend independent medical examinations and examination under oath, and medical provider failed to file notice of voluntary dismissal until one year after filing claim and service of motion for section 57.105 attorney’s fees, insurer is entitled to fee award
AAA MEDICAL GROUP, a/a/o Juan C. Ayala, Plaintiff, v. INSURANCE CORPORATION OF NEW YORK, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 04-7428 SP 26 (04). November 18, 2005. Nuria Saenz De La Torre, Judge. Counsel: Stuart Yanofsky, Sunrise. Edward Winitz, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Coral Gables. Neil M. Gonzalez, Miami.
ORDER GRANTING DEFENDANT’S MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES PURSUANT TO FLORIDA STATUTES, SECTION 57.105
THIS CAUSE came before the Court on November 8, 2005 on the Defendant’s Motion for Entitlement to Attorney’s Fees Pursuant to Florida Statutes, Section 57.105. Present at the hearing were, Stuart B. Yanofsky, Esquire, for the Plaintiff and Edward N. Winitz, Esquire, for the Defendant. The Court having heard argument of counsel, reviewed all pertinent portions of the court file, considered applicable statutes and controlling case law, it is therefore,
ORDERED AND ADJUDGED as follows:
1. On September 24, 2004, the Plaintiff filed an action for damages for alleged overdue no-fault benefits against the Defendant for alleged treatment that had been provided to Juan C. Ayala by the Plaintiff from June 12, 2003 through August 15, 2003. The Complaint included two (2) counts, one for breach of contract and the other for a declaratory judgment.
2. The Defendant filed its Answer and Affirmative Defenses on December 17, 2004 and raised Juan C. Ayala’s failure to attend two (2) Independent Medical Examinations (IME) and an Examination Under Oath (EUO) as the reasons for the denial of payment.
3. The Plaintiff propounded discovery.
4. On August 8, 2005, the Defendant filed a Motion for Final Summary Judgment alleging that the Defendant was not liable for the bills which were the subject of the litigation as Juan C. Ayala had not complied with the requirements of Florida Statutes, Section 627.736(7)(a) which mandates that the person making a claim under this section submit to a mental or physical examination (IME) and also that Juan C. Ayala had breached the terms of the policy because he had failed to attend an EUO as required under Section F of said policy.
5. On August 30, 2005, the Plaintiff mailed a Notice of Voluntary Dismissal which was filed with the Court on September 1, 2005.
6. The Defendant on September 2, 2005 (more than 21 days after it served Plaintiff with the 57.105 Motion) filed with the Court, the Motion to Determine Entitlement to Attorney’s Fees pursuant to Florida Statutes, Section 57.105 and asserts as the basis for the request that Plaintiff and Plaintiff’s counsel knew or should have known that Juan C. Ayala had failed to submit to two (2) IMEs and an EUO as Plaintiff and Plaintiff’s counsel were advised of this in the Defendant’s letter of February 26, 2004 which was sent in response to Plaintiff’s Demand Letter. Therefore, Plaintiff and Plaintiff’s counsel knew or should have known, prior to the filing of the instant action on September 24, 2004, that the claim they were seeking to assert was not supported by the material facts necessary to establish such a claim in that, at the time of the filing of this claim, Juan C. Ayala had already breached the terms of the policy by not attending the EUO and had not complied with the statutory requirements by failing to attend the IMEs.
7. Florida Statutes, Section 57.105 states that “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 was not supported by the material facts necessary to establish the claim or defense; or would not be supported by the application of then-existing law to those material facts.”
8. In Boca Burger v. Forum, 2005 WL 1574249, 30 Fla. L. Weekly S539, 30 Fla. L. Weekly S649 (Fla. 2005), the Supreme Court of Florida, cited to the revised Section 57.105 and held that the standard for awarding fees under this section had been revised and that the movant did not have to prove the absence of a justiciable issue to prevail, all that had to be shown was that the party and their attorney knew or should have known that the claim was not supported by facts or the existing law.
9. In U.S. Security Insurance Co. v. Silva, 693 So. 2d 593 (Fla. 3rd DCA 1997), the Court held that the insurer is not liable for subsequent PIP benefits if the claimant unreasonably refuses to appear to an IME.
10. In Goldman v. State Farm General Fire Insurance Co., 660 So. 2d 300 (Fla. 4th DCA 1995), the Court held that an insured who failed to appear for an EUO had failed to comply with a condition precedent to coverage.
11. In the instant case, the following was undisputed at the hearing on 57.105 fees:
A. The bills for services by the Plaintiff were received by the Defendant on July 25, 2003.
B. On June 9, 2003, the Defendant noticed Juan C. Ayala for an IME to take place on June 25, 2003 and that Juan C. Ayala failed to appear.
C. On June 25, 2003 a second IME was scheduled to take place onJuly 8, 2003 and that Juan C. Ayala again failed to appear.
D. On June 11, 2003, the Defendant noticed an EUO to take place on July 9, 2003 and that Juan C. Ayala failed to appear.
E. On July 18, 2003, the defendant sent a letter to Juan C. Ayala informing him that due to his failure to attend the two (2) IMEs, they were denying payments of PIP benefits.
F. On February 26, 2004, the Defendant sent to Plaintiff’s counsel a response to their Demand Letter stating that the bills submitted for payment had not been paid because there was failure to comply with policy terms and conditions, IME suspension of benefits IME No Show and Failure to attend EUO.
G. The IMEs and EUO were timely scheduled by the Defendant.
H. On November 19, 2004, the Defendant served the Plaintiff’s Attorney the 57.105 Motion as required by the Statute. (“A Motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Section 57.105(4) Florida Statutes (2004)).
12. Notwithstanding receipt of Defendant’s 57.105 Motion, the Plaintiff failed to voluntarily dismiss the action.
13. The Notice of Voluntary Dismissal was not filed by the Plaintiff until almost one (1) year after the commencement of the action and not until one (1) day before the scheduled hearing on the Defendant’s Motion for Summary Judgment.
14. At the time the Plaintiff filed this lawsuit or at any time prior to the Defendant’s Motion for Summary Judgment, the Plaintiff and Plaintiff’s counsel knew or should have known that their claim was not supported by the materials facts necessary to establish their claim, more specifically that, it was the Claimant who had not complied with the statutory requirements and who had first breached the terms of the insurance policy.
15. At the time the plaintiff filed this lawsuit or at any time prior to the Defendant’s Motion for Summary Judgment, the Plaintiff and Plaintiff’s counsel knew or should have known that their claim was not supported by the application of the existing law based on the cases of Silva and Goldman.
16. The Defendant, as the moving party, has met their burden under Florida Statutes, Section 57.105.
ORDERED AND ADJUDGED that the Defendant’s Motion for Entitlement to Attorney’s Fees Pursuant to Florida Statutes, Section 57.105 is Granted. The Court reserves jurisdiction to determine the amount of the fees to be awarded.
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