13 Fla. L. Weekly Supp. 829d
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Rule 1.525 requirement that motion for attorney’s fees be filed within 30 days of service of notice of voluntary dismissal is not applicable to motion for sanctions pursuant to section 57.105 — Where medical provider and counsel should have known that PIP action was not supported by material facts necessary to establish claim since no sums were due provider at time suit was filed and insurer had complied with all provisions of PIP statute prior to filing of suit, case was devoid of merit inasmuch as provider was not entity that demanded payment and copy of PIP log prior to initiation of suit, and provider failed to dismiss suit within 21 days of service of notice of intent to seek sanctions, attorney’s fees are awarded to insurer
SUNCOAST SPINAL MEDICAL & REHAB CENTERS, INC. (as assignee of Suzanne McKibben), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 04-7551-CC, Division “I”. December 6, 2005. Charlotte W. Anderson, Judge. Counsel: Timothy A. Patrick, for Plaintiff. Karen A. Barnett, Barnett & Gacio, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR ATTORNEY’S FEES AND COSTS AND MOTION FOR SANCTIONS
THIS CAUSE having come before the Court on October 20, 2005 upon Defendant State Farm’s Motion for Attorney’s Fees and Costs and Motion for Sanctions, and the Court having heard argument of counsel and being otherwise fully advised in the issues, hereby finds as follows:
1. That Defendant’s Motion for Attorney’s Fees and Costs as to the attorney’s fees and costs requested pursuant to Section 768.79 and Rule 1.442 of the Florida Rules of Civil Procedure is hereby denied as same was not filed in strict compliance with Rule 1.525 of the Florida Rules of Civil Procedure.
2. That Defendant’s Motion for Attorney’s Fees and Costs requesting costs pursuant to Rule 1.420 of the Florida Rules of Civil Procedure is hereby granted as same was filed within thirty (30) days after Plaintiff filed its Notice of Voluntary Dismissal as to Count I of the Complaint.
3. The Court finds that Rule 1.525 of the Florida Rules of Civil Procedure does not govern the award of sanctions pursuant to Section 57.105 of the Florida Statutes. The Court specifically finds that the award of sanctions is different and distinct from any award of fees or costs based upon a statute or contract. Section 57.105 was intended to punish a recalcitrant party, which is completely different than the purpose behind Rule 1.442 or Section 768.79 of the Florida Statutes.
4. The Court further finds that Section 57.105(3) clearly and explicitly uses the language “At any time in any civil proceeding or action . . .”. This language makes it clear that the thirty day provision of Rule 1.525 of the Florida Rules of Civil Procedure is not applicable to Motions for Sanctions pursuant to Section 57.105.
5. The Court further finds that Plaintiff and Plaintiff’s counsel knew or should have known that the instant action was not supported by the material facts necessary to establish the claim in that no sums were due Plaintiff at the time suit was filed and Defendant had complied with all of the provisions of Section 627.736 of the Florida Statutes prior to the initiation of this action.
6. The Court further finds that this case was devoid of merit inasmuch as the Plaintiff was not the entity demanding payment presuit, nor was the Plaintiff the entity demanding a copy of the PIP log prior to the initiation of this action. Plaintiff failed to present any evidence that the Plaintiff actually demanded the production of a PIP log prior to the initiation of this action.
7. The Court finds that Defendant’s Motion for Sanctions was well taken, that Defendant provided the appropriate statutory notice of its intent to seek sanctions pursuant to Section 57.105(4) of the Florida Statutes, and that Plaintiff failed to dismiss the action within twenty one (21) days asdemanded by Defendant.
WHEREUPON the Court hereby finds that all the requirements of Section 57.105 have been met and Defendant is entitled to the recovery of its attorney’s fees and costs from the inception of this litigation through the date of this hearing. The Court further retains jurisdiction to set the amount of attorney’s feesand costs.
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