16 Fla. L. Weekly Supp. 579a
Online Reference: FLWSUPP 166VERGI
Insurance — Attorney’s fees — Water removal company filing suit against insurer mere 19 days after submission of bill to insurer, without giving prior notice to initiate litigation or deadline for payment, was unreasonable — Company’s motion to tax attorney’s fees and costs denied
ALL HOURS EMERGENCY WATER REMOVAL, INC., a/a/o CINDY VERGIN, Plaintiff, vs. FEDERATED NATIONAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502008CC011523XXXXMBRL. March 11, 2009. Peter M. Evans, Judge. Counsel: Imran Malik, for Plaintiff. Rory P. Biggins, Law Offices of Kirwan & Spellacy, P.A., Fort Lauderdale, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO TAX ATTORNEY’S FEES AND COSTS
THIS CAUSE having come upon to be heard before the Court on January 20, 2009 on Plaintiff’s Motion to Tax Attorney’s Fees and Costs, the Court having considered same, and being otherwise advised in the premises, does hereby make the following findings of fact and conclusions of law:
1. That on or about July 1, 2008, a loss occurred that the Plaintiff alleged was covered by a policy of insurance issued by the Defendant to Cindy Vergin.
2. That on or about July 17, 2008, the Plaintiff submitted their bill for services rendered to the Defendant.
3. That on or about August 5, 2008, the Plaintiff filed a Complaint for breach of contract and declaratory relief.
4. That the Plaintiff’s Complaint for breach of contract and declaratory relief was dated August 1, 2008, 15 days after the submission of the bills at issue in the subject claim.
5. That on or about August 13, 2008, the Defendant tendered payment to their insured, Cindy Vergin, for the aforementioned July 1, 2008 loss.
6. That the Plaintiff submitted their bill to the Defendant and, when the Plaintiff received no response from the Defendant, they filed the instant action, a mere 19 days after submission of their bill to the Defendant.
7. That filing suit 19 days after the submission of the bill at issue in the subject claim is unreasonable absent notice to the Defendant.
8. Moreover, the payment of bills within two or three weeks after their submission is not an unreasonable period of time under the circumstances of the subject claim.
9. That there is no evidence that the Defendant knew of any intent to initiate litigation on the part of the Plaintiff prior to the filing of the instant action.
10. That there is no evidence that the Defendant was given any deadline to pay for the services rendered by the Plaintiff prior to the filing of the instant action.
11. That, in the absence of any contract case law or other authority to the contrary, the payment of the instant claim 27 days after receipt of the Plaintiff’s bills is not an unreasonable period of time under the circumstances.
12. That the Defendant did not unreasonably delay the payment of the instant claim.
13. That the Defendant did not have notice to act prior to the filing of the instant action.
14. That the granting of the Plaintiff’s Motion to Tax Attorney’s Fees and Costs would be in contravention to public policy as an attorney could send a bill to an insurer, wait two days, file a lawsuit, wait for the tendering of payment, and then move for attorney’s fees.
That based upon the foregoing the Plaintiff is not entitled to tax attorney’s fees and costs in the subject action and, accordingly, it is hereupon ORDERED AND ADJUDGED:
1. That the Defendant did not unreasonably delay payment in the instant action.
2. That the Defendant was not put on notice of any intent to initiate litigation on the part of the Plaintiff prior to the filing of the instant action.
3. That the Defendant was not given any deadline to pay for the services rendered by the Plaintiff prior to the filing of the instant action.
4. That the filing of suit a mere 19 days after the submission of the bills at issue without prior notice to initiate litigation or the giving of a deadline prior to the filing of suit is unreasonable.
5. That the Plaintiff’s Motion to Tax Attorney’s Fees and Costs is hereby DENIED.
