16 Fla. L. Weekly Supp. 768d
Online Reference: FLWSUPP 168MUNOZ
Insurance — Personal injury protection — Attorney’s fees — Justiciable issues — Where summary judgment was granted in favor of insurer based on invalid demand letter, insurer is entitled to award of attorney’s fees pursuant to section 57.105(1)(a)
TAMPA PERSONAL INJURY CLINIC, INC., (as assignee of Johanna Munoz), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 07-026039, Division “L”. May 28, 2009. Joelle Ann Ober, Judge. Counsel: Timothy A. Patrick, for Plaintiff. Michael P. Liebgold, Luks, Santaniello, Perez, Petrillo, Gold & Jones, Tampa, for Defendant.ORDER
THIS CAUSE, having come before the court on January 22, 2009, on Defendant’s Motion to Tax Attorney’s Fees — Entitlement and Defendant’s Motion to Tax Costs, with Timothy A. Patrick, Esquire for the Plaintiff and Michael Liebgold, Esquire for the Defendant, and the court having reviewed the file and heard argument of counsel, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Tax Attorney’s Fees — Entitlement is HEREBY GRANTED.
2. On March 10, 2008, Defendant sent Plaintiff a then unfiled Motion for Sanctions pursuant to F.S. 57.105, along with a twenty-one (21) day letter allowing Plaintiff an opportunity to dismiss its action within said time frame.
3. Plaintiff did not dismiss its action within twenty-one (21) days.
4. Defendant thereafter prevailed in its Motion for Summary Judgment. Defendant’s argument in support of its Motion to Tax Attorney’s Fees — Entitlement was based upon its Motion for Summary Judgment.
5. The Defendant had filed its Motion for Summary judgment in this PIP suit alleging that the Plaintiff’s pre-suit demand letter was invalid pursuant to the binding case of Chambers Medical Group, Inc. a/a/o Marie St. Hillare v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Circ. Appell. 2006) and therefore a condition precedent was not satisfied, which was presented to the Court and the Plaintiff in the Defendant’s Motion for Summary Judgment.
6. This court grants Defendant’s motion as to entitlement pursuant to F.S. 57.105(1)(a):
(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 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.
However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.
7. The court reserves jurisdiction to determine the amount of attorney’s fees, as well as allocation of said fees.
8. Defendant’s Motion to Tax Costs is HEREBY GRANTED.
9. Defendant is entitled to taxable costs in the amount of $374.26 to be paid within sixty (60) days.
