13 Fla. L. Weekly Supp. 491c
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Where plaintiff chiropractor did not have standing to recover for bills submitted by clinic of which plaintiff is sole director, and plaintiff did not suffer any damages since, although insurer did not pay for treatment billed by clinic, it did pay all bills submitted by plaintiff under individually owned fictitious name, there was complete absence of justiciable issue of fact or law and insurer is entitled to award of attorney’s fees — Where law firm representing plaintiff knew that plaintiff and clinic maintained separate patient files and submitted separate claims for treatment of insured, insurer outlined all problems with case in motion for attorney’s fees yet law firm ignored allegations of motion and proceeded at own peril, and simple inquiry should have alerted law firm that incorrect plaintiff was named in suit and that clinic did not have assignment of benefits, law firm did not act in good faith on representations of client and is liable for half of fee award
VINCENT PREZIOSI, D.C., a/a/o DENNIS M. ANDERSON, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-02-10440. VINCENT PREZIOSI, D.C., a/a/o Dennis Anderson, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. Case No. SCO-02-10953. December 15, 2005. Leon B. Cheek, III, Judge. Counsel: Richard Truitt, Bogin, Munns & Munns, Orlando. Robert D. Bartels, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando.
ORDER GRANTING DEFENDANT’S MOTION FOR ENTITLEMENT
This cause, having come before the Honorable Leon B. Cheek, III, on August 12, 2005 and October 28, 2005, upon Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY’s, Motion for Entitlement to Attorney’s Fees and Costs, and the Court having been fully advised in the premises, states as follows:
NATURE OF THE CASE
1. On or about October 3, 2002, Plaintiff, Vincent Preziosi, D.C. a/a/o Dennis Anderson, served its Complaint against Progressive Express Insurance Company for non-payment of services for June 17, June 18, July 2, and July 22, 2002. The case number assigned to this cause of action is SCO-02-10440.
2. On or about October 10, 2002, Plaintiff, Vincent Preziosi, D.C. a/a/o Dennis Anderson, filed suit against Progressive Express Insurance Company for non-payment of services for dates of service May 5, 2002 through July 16, 2002. The case number assigned to this cause of action was SCO-02-10953.
3. On January 7, 2004, in case number SCO-02-10440, Progressive Express Insurance Company served a Motion pursuant to Florida Statute §57.105 alleging that the Plaintiff was paid in full pursuant to the terms and conditions of the insurance policy, that there was no amount in controversy, that the Plaintiff failed to satisfy statutory conditions precedent by serving a seven (7) day demand letter prior to filing suit, and that the Plaintiff lacked standing. Plaintiff proceeded forward with the litigation and Defendant served a Notice of Filing its Motion for Attorney’s Fees and Costs on January 29, 2004.
4. On January 12, 2004, in case number SCO-02-10953, Progressive Express Insurance Company served a Motion pursuant to Florida Statute §57.105 alleging that the Plaintiff was paid in full pursuant to the terms and conditions of the insurance policy, that there was no amount in controversy, that the Plaintiff failed to satisfy statutory conditions precedent by serving a seven (7) day demand letter prior to filing suit, and that the Plaintiff lacked standing. Plaintiff proceeded forward with the litigation and Defendant served a Notice of Filing its Motion for Attorney’s Fees and Costs on February 3, 2004.
5. On March 16, 2004, the Court entered an Order consolidating these cases for purposes of discovery and trial.
6. Progressive moved for summary judgment, asserting that Plaintiff, Vincent Preziosi, D.C., was not entitled to maintain the causes of action because Plaintiff was not the real party in interest and therefore lacked standing; that Plaintiff had not sustained any damages and therefore was precluded from maintaining the cause of action as a matter of law; and that Plaintiff failed to satisfy statutory conditions precedent.
7. On March 1, 2005, the parties attended a hearing on Defendant’s Motion for Summary Judgment and the Court subsequently granted Defendant’s Motion for Summary Judgment on March 8, 2005.
8. The facts material to Progressive’s Motion for Summary Judgment were undisputed and were established by the pleadings and depositions of record. The material facts established that Progressive’s insured, Dennis Anderson, assigned his rights for PIP insurance coverage to Vincent Preziosi, D.C./C.V. Rehab.
9. Vincent Preziosi, D.C., registered the fictitious name C.V. Rehab with the Florida Department of State, Division of Corporations. Dr. Preziosi individually owned the fictitious name C.V. Rehab.
10. Dr. Preziosi also served as the sole officer/director of Preziosi West/East Orlando Chiropractic Clinic, P.A. Preziosi West/East Orlando Chiropractic Clinic, P.A. is a registered corporation with the Florida Department of State, Division of Corporations.
11. Preziosi West/East Orlando Chiropractic Clinic, P.A., and C.V. Rehab had separate patient files and separate patient ledgers. Preziosi West/East Orlando Chiropractic Clinic, P.A., and C.V. Rehab created and submitted separate HCFAs for the treatment for each entity rendered.
12. C.V. Rehab rendered treatment to Dennis Anderson from May 13, 2002 through June 26, 2002. Progressive paid every bill C.V. Rehab submitted at eighty percent (80%) and the insured satisfied his twenty percent (20%) co-pay obligation. C.V. Rehab’s account was paid in full prior to the filing of these lawsuits.
13. Dr. Vincent Preziosi did not submit any bills Progressive in his individual capacity.
14. Preziosi West/East Orlando Chiropractic Clinic P.A. rendered treatment to Dennis Anderson from May 2, 2002 through August 19, 2002.
15. The bills at issue in the litigation were for dates of services performed by Preziosi West/East Orlando Chiropractic Clinic, P.A.
16. The Court granted Count I of Progressive’s Motion for Summary Judgment finding that the Plaintiff, Vincent Preziosi, D.C., was not the real party in interest and therefore lacked standing to maintain the cause of action. An Assignment of Benefits must be made to a legal person or a legal corporation and that only one party can own a cause of action at any given time. The person that owned the cause of action must be the party to bring the cause of action if one is to be brought. Per the Assignment of Benefits, Anderson assigned his rights to Vincent Preziosi, D.C. and C.V. Rehab. The assignment to Vincent Preziosi in his individual capacity did not give his corporation, Preziosi West/East Orlando Chiropractic Clinic, P.A., standing. The dates of service that the Plaintiff sought to recover were for bills submitted by Preziosi West/East Orlando Chiropractic Clinic, P.A. Since the Plaintiff did not have an Assignment of Benefits, it was not the real party in interest and therefore lacked standing to recover for the bills submitted by Preziosi West/East Orlando Chiropractic Clinic, P.A.
17. The Court also granted Count II of Defendant’s Motion for Summary Judgment finding that the Plaintiff did not sustain any damages. C.V. Rehab’s billing manager testified that Progressive paid all of C.V. Rehab’s bills in full and that the patient satisfied the twenty percent (20%) co-pay obligation. Based on the undisputed testimony, Plaintiff, Vincent Preziosi, D.C./C.V. Rehab, had not sustained any damages.
18. The Court did not render an opinion as to whether the Plaintiff failed to satisfy statutory conditions precedent as outlined in Count III of Defendant’s Motion for Summary Judgment. The Court entered Final Summary Judgment in favor of Progressive on March 8, 2005 and reserved jurisdiction to determine Defendant’s Motion for Entitlement to Attorney’s Fees and Costs.
19. Defendant timely filed its Motion for Attorney’s Fees and Costs pursuant to Florida Statute §57.105 and Florida Rule of Civil Procedure 1.525.
20. Florida Statute §57.105 states in pertinent part:
1) 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 the civil proceeding or action 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;
a) was not supported by the material facts necessary to establish the claim or defense; or
b) would not be supported by the application of the then-existing law to those material facts.
However, the losing party’s attorney is not personally responsible if he or she acted in good faith, based on the representations of his or her client as to the existence of those materials facts. If the Court awards attorney’s fees to a claimant pursuant to this subsection, the Court shall also award prejudgment interest.
21. Pursuant to Horticultural Enterprises v. Plantas Decortivas, LTDA, 623 So. 2d 821 (5th DCA 1993) and Andzulis v. Montgomery Road Acquisitions, Inc., 831 So. 2d 237 (5th DCA 2002), Progressive Express Insurance Company as the moving party, had the burden of proving entitlement to attorney’s fees. Once Progressive established its entitlement to attorney’s fees, the burden shifted to the Bogin Munns & Munns law firm to establish that it relied in good faith on its clients.
22. Based on the above standard, the Court finds that as a matter of law at the time of filing this lawsuit, there was a complete absence of a justiciable issue of both law and fact. Accordingly, Progressive established its burden of proving entitlement to attorney’s fees pursuant to Florida Statute 57.105.
23. As to the Bogin Munns & Munns law firm, its responsibility or the lack thereof is a more difficult issue. Florida Statute §57.105(1) requires that before fees and costs can be imposed, there must be a lack of good faith. Or, put differently, no fees and costs can be found if counsel acted in good faith based on the client’s representations. This Court has no doubt that the attorneys in the Bogin Munns & Munns are persons of integrity and honesty. Further, as Mr. Cornelius repeatedly pointed out during the entitlement hearing, there were dates of service for Preziosi West/East Orlando Chiropractic Clinic, P.A. that Progressive did not pay and therefore, there was a justiciable issue in the case.
24. As counsel for Progressive pointed out, a lawyer has a duty to investigate before he or she initiates a lawsuit. Thus, the question becomes: what did the Bogin Munns & Munns law firm know (or not know) and when did it know it?
25. The firm always knew its client.
26. The firm knew that C.V. Rehab and Preziosi West/East Orlando Chiropractic Clinic, P.A. maintained separate patient files and submitted separate HCFAs for each date of service.
27. The Bogin Munns & Munns law firm attended Progressive’s representative’s deposition wherein she testified that C.V. Rehab’s bills were timely paid pursuant to the terms and conditions of the insurance policy. Additionally, the Bogin Munns & Munns law firm attended the deposition of Julie Hanson, C.V. Rehab’s billing custodian, wherein she testified that all of C.V. Rehab’s bills were timely paid by Progressive at eighty percent (80%) pursuant to the terms and conditions of the insurance policy. Bogin Munns & Munns also attended the deposition of Martha Ortiz, Preziosi West/East Orlando Chiropractic Clinic, P.A.’s billing custodian, wherein she testified that all dates of service identified in the Plaintiff’s Complaints were for dates of service rendered by Preziosi West/East Orlando Chiropractic Clinic, P.A.
28. Both billing managers relied on the identical Assignment of Benefits for standing in this case.
29. Bogin Munns & Munns maintained a copy of the Assignment of Benefits signed by Progressive’s insured, Dennis Anderson, wherein Mr. Anderson assigned his rights to Vincent Preziosi, D.C./C.V. Rehab. Bogin Munns & Munns attached a copy of the Assignment of Benefits to its Complaint in these respective cases.
30. Progressive, by providing its Motion for 57.105 fees outlined all of the issues and problems with these cases but for whatever reason, Plaintiff and Plaintiff’s counsel ignored the allegations and proceeded forward at their own peril.
31. Had the Bogin Munns & Munns law firm made these types of simple inquiry, it would have no doubt determined that it named a totally incorrect party-plaintiff in this lawsuit. Further, simple inquiries regarding C.V. Rehab and Preziosi West/East Orlando Chiropractic Clinic, P.A. would have alerted the firm that the dates of service at issue in the Complaints were for Preziosi West/East Orlando Chiropractic Clinic, P.A. Additionally, upon reviewing the Assignment of Benefits, Bogin Munns & Munns should have determined that Preziosi West/East Orlando Chiropractic Clinic, P.A. did not have an Assignment of Benefits signed by Progressive’s insured. Accordingly, no entity would have standing to pursue Progressive for the outstanding dates of service.
32. The Court is compelled, on the record before it, to find that the Bogin Munns & Munns law firm did not act in good faith based on its client’s representations in the filing of this lawsuit.
It is therefore ORDERED AND ADJUDGED that pursuant to Florida Statute §57.105, the Court finds Vincent Preziosi, D.C. and Bogin Munns & Munns, P.A., liable in equal amounts for the Defendant’s Attorney’s Fees and Costs. The Court shall retain jurisdiction to determine the amount of Defendant’s fees and costs.
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