15 Fla. L. Weekly Supp. 293a
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Exhaustion of benefits — Where issue of effect of exhaustion of benefits on pending claim is not settled in Florida, it cannot be said that medical provider’s claim could not be supported by application of then-existing law to facts — Although insurer claims to possess evidence that provider’s bill was received by insurer after benefits were exhausted, where insurer withheld such evidence from provider until two days before hearing on motion for summary judgment, it would be manifestly unjust to allow insurer to claim that provider should have known all along that facts did not support claim — Motion for attorney’s fees and costs denied
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, as assignee of Jenny Lowe, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit, Seminole County. Case No. 05-SC-2434. September 17, 2007. Donald L. Marblestone, Judge. Counsel: Valencia Percy Flakes. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
ORDER DENYING DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS
This matter came before the Court on August 14, 2007, on Defendant’s Motion for Attorney Fees and Costs, and, having been advised in the premises and having heard argument of counsel, the court finds that:
1. On or about July 13, 2005, the Plaintiff filed this lawsuit to recover allegedly overdue PIP benefits for Plaintiff’s bills for health care services provided to Jenny Lowe.
2. On March 27, 2007, The Honorable Wallace H. Hall, Senior Judge, entered Final Summary Judgment in favor of Defendant, having previously granted Defendant’s Motion for Summary Judgment based on Defendant’s assertion that the subject PIP benefits had been exhausted.
3. Defendant moved to tax fees and costs against the Plaintiff pursuant to §§ 57.105 and 57.041, Fla. Stat. (2006).
4. § 57.105, Fla. Stat. (2006) 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 a civil proceeding or action in 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 then-existing law to those material facts.
5. The issue of the effect of exhaustion of PIP benefits on a pending claim is far from settled in Florida; it seems that for every County Court order or Circuit Court appellate decision in favor of the insurer on this issue, there is another order or opinion in favor of the insured or assignee health care provider. Even the District Courts of Appeal have only addressed one very narrow aspect of exhaustion of benefits, which is often not dispositive of the issue. See, e.g., Simon v. Progressive Express Insurance Company, 904 So. 2d 449 (Fla. 4th DCA 2005).
6. Accordingly, it can hardly be said that the Plaintiff’s claim could not be supported by the application of the existing law to the material facts of this case as known by the Plaintiff or Plaintiff’s counsel during the course of this litigation.
7. Although the Defendant claims to possess evidence that the Plaintiff’s bill was first received by Defendant after benefits were exhausted, such evidence is not in the record before the court. The existence of such evidence may well be, as was indicated by Plaintiff’s counsel at the hearing on Defendant’s Motion to Tax Fees and Costs, the reason why the Plaintiff did not seek appellate review of the final judgment.
8. However, the Defendant withheld this non-record evidence from the Plaintiff until two days before the hearing on Defendant’s motion for summary judgment; the Plaintiff appropriately filed a verified motion to continue the summary judgment hearing in order to determine the validity of the proffered evidence, but that motion was denied.
9. To allow the Defendant to “hide the ball” as to the existence of this evidence and then after producing it at the eleventh hour to claim that the Plaintiff and Plaintiff’s counsel should have “known all along” that the material facts did not support their claim would be manifestly unjust.
10. The Defendant does not come before this court with clean hands in this regard and cannot benefit therefrom at the Plaintiff’s expense, and, therefore;
IT IS ADJUDGED that:
1. The Defendant’s Motion for Attorney Fees and Costs is DENIED.
