13 Fla. L. Weekly Supp. 620b
Insurance — Personal injury protection — Standing — Assignment — Validity — Assignment that conveys intent to transfer right to bring cause of action for PIP benefits is valid despite reservation of right to bill insured for amounts due — Attorney’s fees — Justiciable issues — Motion for award of attorney’s fees as sanction for filing motion to dismiss for lack of standing is denied — Despite fact that same motion was denied in another suit involving same parties, court does not believe insurer intentionally omitted contrary authority from its argument — Offer of settlement — Motion to invoke rule 1.442 is granted where there is no equitable or practical basis to deny request to invoke rule that would provide basis for fee award to either party
RHODES AND ANDERSON D.C. P.A. d/b/a VENICE CHIROPRACTIC CENTER (a/a/o IRENA DYNDUL), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, South County. Case No. 2005 SC 1960 SC. September 9, 2005. Kimberly C. Bonner, Judge. Counsel: Virlyn B. Moore, III, Venice, for plaintiff. Philip A. Friedman, Ramey, Ramey & Kampf, P.A., for Defendant.
[Editor’s note: see 13 Fla. L. Weekly Supp. 903a]
ORDER ON PLAINTIFF’S MOTION TO STRIKE and FOR SANCTIONS, and DEFENDANT’S MOTIONS TO DISMISSAND TO INVOKE THE RULES OF CIVIL PROCEDURE
This cause came on for hearing on the above referenced motions. This case involves disputed medical bills under the Personal Injury Protection (PIP) coverage of the Plaintiff’s assignor. After consideration of the arguments of counsel and the applicable authorities, the court finds as follows:
DEFENDANT’S MOTION TO DISMISS: The court finds that this motion is not well taken. With regard to the contention that the assignment at issues violates the policies set forth in Neurology Consultants v. Progressive Express Insurance Co., 11 Fla. L. Weekly Supp. 585b (Fla. 19th Circuit 2004) and Camber Companies Southeast, LLC v. Nat’l Insurance Association, 9 Fla. L. Weekly Supp. 820a, a review of the actual assignment shows that it meets the criteria for a valid assignment. It conveys an intent to transfer a right or benefit and is valid despite the Plaintiff’s reservation of the right to bill the assignor for amounts due. See Oglesby v. State Farm Mutual Automobile Insurance Co., 781 So. 2d 469, (Fla. 5th DCA 2001). The Plaintiff “owns” the right to bring the present cause of action. After reviewing the Defendant’s other assertions, including the failure of consideration, the court finds that these arguments are also without merit. The court therefore DENIES the Motion to Dismiss.
PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS: The Plaintiff asserts that the court should impose sanctions against the defendant for setting forth a clearly unsupportable defense in its motion and failing to apprise the court of authority that does not support its position. In addition, the Plaintiff asserts that the same motion was denied in a Manatee County lawsuit involving the same parties and attorneys. Section 57.105 specifically authorizes a court to award such fees only when it is determined that the losing party knew or should have known that its claim was either not supported by material facts or would not be supported by the applicable law. (Emphasis added).
Although the court agrees that the Defendant’s Motions should be denied, it cannot find under section 57.105 that sanctions should be imposed at this time, nor does it believe that the defendant intentionally omitted contrary authority from its argument. The Motion is therefore DENIED. However, having expressed its ruling on these matters, the court expects Defendant and Defense counsel to be conduct themselves accordingly when bringing similar issues to hearing in the future.
MOTION TO INVOKE THE RULES OF CIVIL PROCEDURE: The Defendant requests that the court invoke Florida Rule of Civil Procedure 1.442, which pertains to offers of settlement. The defendant counters that appellate decisions have stated that Florida Statute 768.79, which also pertains to offers of settlement, already apply to PIP cases. E.g. U.S. Security v. Cahasqui, 760 So. 2d 1101 (Fla. 3rd DCA 2000); Tran v. State Farm Fire and Casualty, 860 So. 2d 1000 (Fla. 1st DCA 2003). The Plaintiff contends that it is unnecessary and inappropriate to invoke the procedural rule and urges the court to simply let any appellate avenues run their course should there be a dispute as to the defendant’s ability to file an offer of settlement under either provision.
The PIP statute (section 627.428) provides for attorney’s fees to successful plaintiffs. The court sees no equitable or practical basis to deny the defendant’s request to invoke the procedural rule, which would also provide a basis for an award of fees to a successful defendant. Because both parties may take advantage of the provisions of the rule and statute, neither side gains or loses an advantage in the litigation.
Therefore, the court GRANTS the Defendant’s Motion to Invoke Rule 1.442 of the Florida Rules of Civil Procedure.
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