13 Fla. L. Weekly Supp. 715b
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Where reasonable presuit investigation would have revealed that benefits had never been assigned to medical provider, and suit would have never been filed, insurer is entitled to attorney’s fees and costs
TERLEP CHIROPRACTIC, P.A., o/b/o Michelle Schuyler, Plaintiff, v. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Hernando County. Case No. H-27-SP-2005-197. April 19, 2006. Kurt E. Hitzemann, Judge. Counsel: Amy G. Cohen, New Port Richey. Gale L. Young, Gale L. Young, P.A., Tampa.
ORDER ON DEFENDANT’S MOTION TO DETERMINE ENTITLEMENT TO ATTORNEY’S FEES
THIS MATTER having come before the Court on the Defendant’s Motion to Determine Entitlement to Attorney’s Fees and the Court having reviewed the file, the pleadings, heard the arguments of counsel and the Court being otherwise fully advised in the premises, the following findings of fact and conclusions of law are made:
1. Defendant filed its Motion to Tax Attorney’s Fees and Motion to Dismiss on May 11, 2005. The basis of each was that benefits in this matter had never been properly assigned to the named plaintiff.
2. By Order dated November 11, 2005, the matter was dismissed without prejudice to filing an amended complaint within 30 days.
3. On November 22, 2005, the Defendant filed its Motion to Determine Entitlement to Attorney’s Fees.
4. The Plaintiff did not file an amended complaint within 30 days. Therefore, the matter is deemed dismissed as of November 16, 2005, and the Defendant’s Motion to Determine Entitlement to Attorney’s Fees is timely under Rule 1.525 Fla.R.Civ.P.
5. A reasonable pre-suit investigation by the Plaintiff would have revealed the fatal flaw with regard to the assignment of benefits. Based upon the Plaintiff’s failure to file an amended complaint, it may be concluded that had a reasonable pre-suit investigation been conducted, this suit would never have been filed.
6. Defendant is entitled to recover costs and attorney’s fees from Plaintiff pursuant to Florida Statutes Sec. 57.105.
7. The Court finds that its decision with regard to costs and fees under Section 57.105 makes it unnecessary to determine the Defendant’s entitlement to costs and fees under the alternative grounds raised in the Defendant’s Motion to Determine Entitlement to Attorney’s Fees.
Therefore, it is ORDERED AND ADJUDGED that the Defendant is entitled to recover costs and attorney’s fees from Plaintiff pursuant to Florida Statutes Sec. 57.105. The Court reserves jurisdiction to determine the amount of fees and costs due to the Plaintiff.
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