14 Fla. L. Weekly Supp. 621a
Insurance — Personal injury protection — Dismissal — Failure to prosecute — Record activity — Error to grant insurer’s motion to dismiss for lack of prosecution where there was record activity within one year preceding motion to dismiss, even though record activity was action by insurer rather than by plaintiff-medical provider
NEURO-STAT DIAGNOSTICS, INC., as assignee of GESNER LUCIEN, Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 05-70. L.C. Case No. CCO-01-17623. March 23, 2007. Appeal from the County Court for Orange County, A. Plogstedt, Judge. Counsel: Peter J. Zinaich, Law Offices of Peter J. Zinaich, Lake Mary, for Appellant. Heather C. Goodis, Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., St. Petersburg, for Appellee.
(Before TURNER, THORPE and WHITEHEAD, JJ.)
FINAL ORDER REVERSING TRIAL COURT’S “ORDER GRANTING DEFENDANT’S MOTION TO DISMISSFOR LACK OF PROSECUTION” AND GRANTINGAPPELLANT’S “ MOTION FOR ATTORNEY’S FEES”
(PER CURIAM.) Appellant Neuro-Stat Diagnostic appeals the lower court’s final order dismissing its complaint for PIP benefits based upon a lack of prosecution. Appellant timely appealed the final order. See Fla. R. App. P. 9.110(b). This Court has jurisdiction. See Fla. R. App. P. 9.030(c)(1)(A).
On November 29, 2001, Neuro-Stat, as assignee of Gesner Lucien, filed suit against Progressive Express Insurance Company (Progressive) seeking payment of $1,054.40 in medical services Neuro-Stat provided to Progressive’s insured. Progressive filed a motion to dismiss for lack of prosecution on May 25, 2005. The trial court held a hearing on June 20, 2005 and entered an order granting Progressive’s motion to dismiss on July 12, 2005. This appeal followed.
The standard of review for a trial court’s dismissal for failure to prosecute is abuse of discretion. Elegele v. Halbert, 890 So. 2d 1272 (Fla. 5th DCA 2005). Neuro-Stat argues that the trial court erred in dismissing its cause of action because there was record activity in the year preceding Progressive’s motion and relies on Wilson v. Salamon, 923 So. 2d 363 (Fla. 2005), in support of its argument. Progressive contends that it was Neuro-Stat’s burden to prosecute the action and that the record activity was generated by Progressive and not Neuro-Stat. Therefore, Progressive maintains that Neuro-Stat did not prosecute its cause of action in the year preceding the motion to dismiss and thus, the trial court properly dismissed the action.
At the time of the trial court’s dismissal, Florida Rule of Civil Procedure 1.420(e) stated as follows:
[a]ll actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
The issue in this case is whether there has been sufficient record activity that would preclude dismissal for lack of prosecution.
In Wilson, the only record activity in the year preceding the motion to dismiss was an order granting a motion to appear pro hac vice. 923 So. 2d at 364. The trial court granted the motion to dismiss and the district court affirmed the decision finding that the motion to appear pro hac vice was insufficient activity to preclude dismissal. Id. The supreme court, however, quashed the decision of the district court.
In its opinion, the supreme court receded from its prior interpretation of Rule 1.420(e) in that it required trial courts to look beyond the face of the record to subjectively determine whether the record activity was passive or active. Id. at 369. Instead, the court returned to the plain meaning of the rule based on the plain language of the rule. Id. The plain language of the rule provides that if there is record activity within the preceding year, the action should not be dismissed. Id. at 368 (citation omitted). On the other hand, if there is no record activity in the preceding year, the action should be dismissed unless a party can establish good cause. Id. The court’s construction of Rule 1.420(e) established “a bright-line test that will ordinarily require only a cursory review of the record by a trial court.” Id.
Here, Progressive filed its motion on May 25, 2005. The record reflects that there was a notice of unavailability filed on June 8, 2004 and another one filed on June 11, 2004. In addition, there was a notice cancelling a hearing filed on June 24, 2004 and a notice of substitution of counsel filed on September 1, 2004. Pursuant to the bright-line test set out in Wilson, any one of the above filings is sufficient to preclude dismissal of Neuro-Stat’s cause of action. See Reddy v. Farkus, 933 So. 2d 595 (Fla. 5th DCA 2006) (finding that a notice of cancellation of a hearing was sufficient to preclude dismissal under rule 1.420(e)). While Progressive contends that it filed all of the above documents, the plain language of the rule does not draw a distinction between which party filed the record activity. See Lang v. Mason, 911 So. 2d 167 (Fla. 2d DCA 2005) (finding that a defendant’s motion to dismiss for lack of prosecution was improperly granted where the defendant filed discovery requests one month before filing the motion to dismiss). Because there was record activity in the year preceding Progressive’s motion to dismiss, the trial court erred in dismissing the cause of action.
Based on foregoing, it is hereby ORDERED AND ADJUDGED that the trial court’s “Order Granting Defendant’s Motion to Dismiss for Lack of Prosecution” is REVERSED. Neuro-Stat’s “Motion for Attorney’s Fees” is GRANTED. This case is REMANDED for assessment of attorney’s fees and for further proceedings consistent with this opinion.
