14 Fla. L. Weekly Supp. 645a

Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Unsupported defense — Attorney’s fees are taxed against insurer and insurer’s counsel for filing frivolous motion to dismiss for lack of standing based on alleged prior assignment to different medical provider where motion was not supported by allegations within four corners of complaint

AFO IMAGING, INC. (As assignee of RICHARD KERN), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 06 27864. Division K. April 26, 2007. Cheryl K. Thomas, Judge. Counsel: Bradley Souders, Bradley D. Souders P.A. Heather Harwell, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION TO TAX ATTORNEY’S FEES AND SANCTIONS AGAINST DEFENDANT AND DEFENSE COUNSEL FOR RAISING UNSUPPORTED DEFENSES

THIS CAUSE having come before the Court this April 2, 2007 to hearing Plaintiff’s Motion To Tax Attorney’s Fees And Sanctions For Raising Unsupported Defenses and the Court having heard from respective counsel, having reviewed the record and otherwise being fully advised, it is hereupon:

ORDERED AND ADJUDGED the Court GRANTS Plaintiff’s Motion To Tax Attorney’s Fees And Sanctions for Raising Unsupported Defenses; and, specifically finds the following:

On October 12, 2006, the Plaintiff filed this action against the Defendant for outstanding personal injury protection insurance benefits;

The Plaintiff’s Complaint alleged:

On December 18, 2005, Richard Kern was involved in a motor vehicle collision;

At all times material, Richard Kern had entered into an agreement with the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, to provide him personal injury protection benefits in the event of a motor vehicle collision;

At all times material, Richard Kern sought examination from the Plaintiff, AFO Imaging, Inc. to examine accident related injuries;

At all times material, Richard Kern assigned his insurance benefits to the Plaintiff AFO Imaging, Inc.;

At all times material, the Plaintiff, AFO Imaging, Inc. accepted the assignment of benefits, provided the requested services, and billed the Defendant;

At all times material, the Defendant did not pay the billing submitted by the Plaintiff;

At all times material, the Plaintiff issued a notice of intent to litigate to the Defendant; and

At all times material, the Plaintiff’s Complaint alleged breach of contract, statute and outstanding damages, attaching copy of the assignment of benefits, billing and notice of intent to litigate.

On November 13, 2006, the Defendant filed its Motion To Dismiss For Lack Of Standing;

The Defendant’s Motion To Dismiss For Lack Of Standing alleged the following:

Richard Kern was involved in a motor vehicle accident on 12/18/2005;

AFO Imaging, Inc. filed this action against United Automobile Insurance Company alleging the carrier breached an automobile insurance policy by failing to pay insurance benefits;

AFO Imaging, Inc. based its standing to file this action upon an assignment from the insured, Richard Kern dated January 5, 2006;

Richard Kern previously assigned all right, title, interest and benefits in the United Automobile Insurance Company insurance policy to Creighton Health Care, Inc., referencing and attaching a copy of the prior assignment as Exhibit -A- to the motion to dismiss.

Based on the prior assignment, immediately referenced above, Richard Kern had retained no right, title, interest, benefit or standing to sue; and therefore, had no benefits or standing to assign to AFO Imaging, Inc.;

AFO Imaging, Inc. failed to attach any documents to the Complaint which would evidence a revocation of benefits or re-assignment of benefits prior to assignment to AFO Imaging, with regard to any benefit in the policy which had been previously assigned by the attached assignment of benefits;

AFO Imaging, Inc. forwarded a pre-suit demand to United Automobile Insurance Company and this item did not contain any documentation reflecting any revocation of the prior assignment by Richard Kern to Creighton Health Care, Inc.;

Richard Kern never revoked the prior assignment of benefits to Creighton Health Care, Inc.; and therefore, he no longer has any privity of contract; and consequently, AFO Imaging, Inc. has no privity of contract;

Plaintiff has presented no evidence or information that would indicate a genuine issue of material fact with regard to the invalidity of the prior assignment of benefits;

The lack of standing may not be corrected or remedied by state or abatement of the current proceedings; and

The Motion To Dismiss attached, referenced and relied upon an “ASSIGNMENT, LIEN AND AUTHORIZATION INSURANCE BENEFITS, of CREIGHTON HEALTH CARE, INC. dated 3rd day of January, 2006, allegedly signed by Richard Kern.

Florida law clearly states a motion to dismiss cannot be used as a substitute for a motion for summary judgment. On a motion to dismiss, the trial court is confined to only consider the allegations within the four (4) corners of the complaint. See, Baycon Industries, Inc. v. Shea, 714 So.2d 1094 (2nd DCA 1998); and Hewett-Keir Construction, Inc. v. Lemuel Ramos And Associates, Inc., 775 So.2d 373 (4th DCA 2000) (citing Reed v. Sampson, 349 So.2d 684 (4th DCA 1977);

On November 15, 2006, the Plaintiff served the Defendant the Plaintiff’s Motion To Tax Attorney’s Fees And Sanctions For Raising Unsupported Defenses, citing the above Florida case law to the Defendant or defense counsel;

Within twenty-one (21) days after receipt of the above motion, the Defendant and/or defense counsel did not issue any response or any corrective action;

Also within twenty-one (21) days after Defendant’s or defense counsel’s receipt of the above motion, the Plaintiff noticed the Motion To Dismiss For Lack Of Standing first by scheduling it for hearing on January 25, 2007; and by amended notice rescheduling it for hearing on February 5, 2007;

On December 11, 2006, the Court issued a Standard PIP Pretrial Order, requiring Defendant to file a responsive pleading to the Complaint within twenty (20) days;

Within twenty (20) days afterwards, the Defendant did not file a responsive pleading to the Complaint;

On January 18, 2007, the Plaintiff filed the Plaintiff’s Motion To Tax Attorney Fees And Sanctions For Raising Unsupported Defenses to the court file;

On February 1, 2007, the Defendant unilaterally canceled the Plaintiff’s Notice of Hearing scheduling the Motion To Dismiss to be heard by the Court the following Monday morning, February 5, 2007;

On February 5, 2007, the Plaintiff appeared for the hearing and was informed by the judicial assistant of the Defendant’s Notice of Cancellation of Hearing on the motion;

On February 12, 2007, the Defendant, by defense counsel, filed a Defendant, United Automobile Insurance Company’s, Notice Of Withdrawal Of Motion To Dismiss Without Prejudice to the court file;

On February 15, 2007, the Plaintiff noticed for hearing the:

Defendant’s Motion To Dismiss For Lack Of Standing;

Plaintiff’s Motion to Tax Attorney’s Fees And Sanctions For Raising Unsupported Defenses;

And other motions;

At all times material, the Court grants the Plaintiff’s Motion To Tax Attorney’s Fees And Sanctions For Raising Unsupported Defenses as:

The Court finds the Defendant or the defense counsel, Heather Harwell, Esquire knew or should have known that the Motion To Dismiss For Lack Of Standing when initially presented to the court or anytime before trial:

Was not supported by the material facts necessary to establish the defense;

Was not supported by the application of then-existing case law to the material facts;

The above-cited Florida case law clearly holds a motion to dismiss cannot be used as a substitute for a motion for summary judgment. Likewise, Florida law clearly states the trial court is confined to only consider the allegations within the four (4) corners of the Complaint;

The court had the opportunity to observe the demeanor of the defense counsel and finds that her explanation, argument, testimony was not credible in light of;

Defense counsel first argued the Defendant filed a Motion For Summary Judgment on the issues alleged by the Motion To Dismiss For Lack of Standing; when in fact, no such pleading has been filed to date;

Defense counsel secondly argued Rule 1.150 of the Florida Rules of Civil Procedure required the a verified motion; when in fact, applicable Florida law or Section 57.105, Florida Statutes does not contain any such requirement;

Defense counsel thirdly re-argued the Motion To Dismiss was timely withdrawn and re-filed as a Motion For Summary Judgment; when in fact, there was not any timely withdrawal of the motion; and, there was no filing of any Motion for Summary Judgment (as previously noted above);

This court is mindful of the standard jury instruction providing for believability of a witness and the weight to be given the testimony of any witness, considering the demeanor, the frankness or lack thereof, the intelligence of the witness, the interest in the outcome of the case; the means and opportunity the witness had to know the facts about which the witness testified; the ability of the witness to remember the matters; the reasonableness of the testimony of the witness; and thus

The Court did not find the defense counsel’s arguments or the Motion to Dismiss For Lack Of Standing credible; accurate; or supported by the material facts or by the application of then-existing case law to the material facts.

By awarding the Plaintiff’s Motion To Tax Attorney’s Fees And Sanctions for Raising Unsupported Defenses, the Court finds the Plaintiff is hereby entitled to an award of a reasonable attorney’s fee to be paid to the Plaintiff in equal amounts by the Defendant and the Defendant’s attorney, Heather Harwell, Esquire for all services related to the Motion To Dismiss For Lack Of Standing;

The Court reserves jurisdiction to determine the amount of the attorney fees as well as the expert witness fees and costs related to the frivolous Motion To Dismiss For Lack Of Standing; and

Defense counsel, Heather Harwell, Esquire shall file an affidavit indicating she will personally pay half of the attorney fees awarded and her share or responsibility of the fees will not be passed on to the Defendant in the form of additional/padded billing or by other means.