16 Fla. L. Weekly Supp. 257a
Online Reference: FLWSUPP 163DANYS
Insurance — Personal injury protection — Attorney’s fees — Justiciable issues — Insurer entitled to recover fees from provider where at time medical provider filed suit, or any time prior to voluntary dismissal, provider knew or should have known that claim was not supported by material facts necessary to establish claim — Insurer has not met burden to prove entitlement to recover fees from provider’s attorney
SOUTH MIAMI 3-DIMENSIONAL INSTITUTE, INC., a/a/o ARTEAGA DANYS, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 05-1200 SP 25 (04). September 22, 2008. Nuria Saenz, Judge. Counsel: Maria E. Corredor. Jeffrey B. Tutan, Roig, Kasperovich, Tutan & Woods, P.A., Deerfield Beach.
ORDER GRANTING DEFENDANT’S MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES PURSUANT TO FLORIDA STATUTES, SECTION 57.105 AS TO PLAINTIFF SOUTHMIAMI 3-DIMENSIONAL INSTITUTE, INC. AND DENYING AS TO ATTORNEY MARIA E. CORREDOR
THIS CAUSE came before the Court on September 11, 2008 on the Defendant’s Motion for Entitlement to Attorney’s Fees Pursuant to Florida Statutes, Section 57.105. The Court having heard argument of counsel, reviewed all pertinent portions of the court file, considered applicable statutes and controlling case law, it is therefore,
ORDERED AND ADJUDGED as follows:
1. The Defendant filed Motions to Dismiss Pursuant to Florida Statutes, Section 57.105.
2. The Plaintiff failed to Dismiss the case within the statutory time provided in Section 57.105.
3. The Plaintiff has since filed a Notice of Voluntary Dismissal.
4. The Defendant has pursued its request for attorney’s fees pursuant to its Motion to Dismiss and Section 57.105.
5. Florida Statutes, Section 57.105, states that “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 was not supported by the material facts necessary to establish the claim or defense; or would not be supported by the application of then-existing law to those material facts.”
6. In Boca Burger v. Forum, 912 So.2d 561 (Fla. 2005), the Supreme Court of Florida, cited to the revised Section 57.105 and held that the standard for awarding fees under this section had been revised and that the movant did not have to prove the absence of a justiciable issue to prevail, all that had to be shown was that the party and their attorney knew or should have known that the claim was not supported by facts or the existing law.
7. At the time the Plaintiff filed this lawsuit and at any time prior to the Voluntary Dismissal, the Plaintiff knew or should have known that their claim was not supported by the material facts necessary to establish the claim.
8. The Defendant has met its burden under Florida Statutes, Section 57.105 with regards to the Plaintiff and is entitled to attorney’s fees and costs.
9. The Defendant has not met its burden under Florida Statutes, Section 57.105 with regards to Attorney Maria E. Corredor and is not entitled to recover attorney’s fees and costs.
10. The Court reserves jurisdiction to determine the amount to be awarded.
