16 Fla. L. Weekly Supp. 956b
Online Reference: FLWSUPP 1610BUIS
Insurance — Personal injury protection — Attorney’s fees — Justiciable issues — Where insurer asserted in answer that it did not issue policy to insured and notified medical provider and its attorney of name of proper carrier, insurer is entitled to award of attorney’s fees and costs — Where provider’s attorney was not acting in good faith, provider and attorney shall be jointly and severally responsible for fees and costs
CENTRAL FLORIDA REHAB CENTER INC., a/a/o Daphney Buisereth, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 08-SC-08519, Division 70. July 27, 2009. John E. Jordan, Judge. Counsel: Joseph P. Gleason, Law Offices of Gonzalez & Associates, Orlando, for Plaintiff. Donald J. Masten, Masten, Lyerly, Peterson & Denbo, LLC, Orlando.
FINAL JUDGMENT AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND MOTION FOR ATTORNEY’S FEES AND COSTS PURSUANTTO FLORIDA STATUTES §57.105
THIS CAUSE, having come to be heard before this Honorable Court on July 27, 2009 on Defendant’s Motion for Final Summary Judgment and Defendant’s Motion for Entitlement to Attorney’s Fees and Costs pursuant to F.S. §57.105, and, having heard arguments of counsel and being otherwise fully informed in the premises, this Court finds as follows:
1. On June 18, 2008, Plaintiff filed its Complaint against Defendant, ALLSTATE INSURANCE COMPANY.
2. On July 31, 2008, Defendant served its Answer and Demand For Jury Trial and asserted that ALLSTATE INSURANCE COMPANY did not issue the policy of insurance that covered the assignor, Daphney Buisereth, for the alleged injuries sustained in the subject motor vehicle accident.
3. On July 31, 2008, Defendant served its Motion for Summary Judgment with attached Affidavit of Olimpia Albinson in Support of Defendant’s Motion for Summary Judgment based on Plaintiff improperly initiating and maintaining its suit against ALLSTATE INSURANCE COMPANY.
4. On August 28, 2008, Plaintiff served its Reply to Defendant’s Affirmative Defenses and denied each and every affirmative defense, despite the fact that ALLSTATE INSURANCE COMPANY did not raise any affirmative defenses.
5. In its letter dated October 23, 2008, counsel for Defendant advised counsel for Plaintiff that ALLSTATE INSURANCE COMPANY did not insure the assignor, Daphney Buisereth, and that the proper carrier was Allstate Property and Casualty Insurance Company.
6. On January 19, 2009, Defendant’s counsel provided counsel for Plaintiff with ALLSTATE INSURANCE COMPANY’s Motion for Entitlement to Attorney’s Fees and Costs advising that the Motion would not be filed until the expiration of twenty-one (21) days from service of the Motion.
7. On February 17, 2009, ALLSTA I E INSURANCE COMPANY served its Notice of Filing Defendant’s Motion for Entitlement to Attorney’s Fees and Costs Pursuant to Fla. Stat. §57.105.
8. Plaintiff and Plaintiff’s counsel knew or should have known at the time suit was filed that they had improperly sued ALLSTATE INSURANCE COMPANY.
9. Plaintiff and Plaintiff’s counsel knew or should have known at the time suit was filed, that they had sued the wrong insurance company, yet Plaintiff continued to maintain its suit against ALLSTATE INSURANCE COMPANY for almost a year.
10. Plaintiff had multiple opportunities to correct its mistake and failed or refused to do so. ALLSTATE INSURANCE COMPANY filed its Motion for Summary Judgment as to incorrect carrier, and subsequently filed its Motion to Tax Fees & Costs pursuant to F.S. §57.105 providing Plaintiff with the 21 day Safe Harbor Provision in which to cure the wrongful conduct. Plaintiff failed or refused to do so.
11. Defendant’s Motion for Summary Judgment and Motion for Entitlement to Attorney’s Fees and Costs Pursuant to Florida Statutes §57.105 were properly noticed for hearing for July 27, 2009.
12. Plaintiff filed not affidavits or memoranda in opposition to Defendant’s Motion for Summary Judgment and Motion for Entitlement to Attorney’s Fees and Costs Pursuant to Florida Statutes §57.105.
Therefore, it is hereby
ORDERED AND ADJUDGED as follows:
1. Defendant’s, ALLSTATE INSURANCE COMPANY, Motion for Summary Judgment is hereby GRANTED.
2. Defendant’s, ALLSTATE INSURANCE COMPANY, Motion for Entitlement to Attorney’s Fees and Costs Pursuant to Florida Statutes §57.105 is hereby GRANTED.
3. The Court finds that Defendant properly complied with the conditions precedent to support its entitlement to attorneys fees and costs pursuant to F.S. §57.105.
4. The Court finds that Plaintiff and Plaintiff’s attorney knew or should have known that the claim when initially presented to the court and during the past year was not supported by the material facts necessary to establish the claim; and was not supported by the application of existing law to those material facts.
5. The Court makes express findings that the Law Office of Gonzalez & Associates, LLC was not acting in good faith by initiating and maintaining this suit.
6. Central Florida Rehab Center, Inc. and the Law Office of Gonzalez & Associates, LLC shall each be jointly and severally responsible for Defendant’s reasonable attorney’s fees and costs.
7. Defendant shall go hence without day.
8. The Court reserves jurisdiction to determine the amount of reasonable attorney’s fees, interest and costs to be awarded to Defendant.
