16 Fla. L. Weekly Supp. 920a
Online Reference: FLWSUPP 1610ORTI
Insurance — Personal injury protection — Attorney’s fees — Justiciable issues — Error to deny award of attorney’s fees to insurer where medical provider pursued suit for six months after discovery despite sworn discovery asserting lack of coverage due to expiration of policy prior to accident
WESTERN GENERAL INSURANCE COMPANY, Appellant, vs. OPEN MRI CMS a/a/o VICKY ORTIZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-063 AP. L.T. Case No. 06-21095 SP 25. August 14, 2009. An Appeal from County Court, Miami-Dade County, Nuria Saenz, Judge. Counsel: John A. Greco, for appellant. Marlene S. Reiss, for appellee.
(Before, Margarita Esquiroz, Ronald M. Freidman and Gisela Cardonne Ely, JJ.)
The appellant, Western General insurance Company, had issued a thirty day liability policy to Vicky Ortiz, which expired on August 10, 2004. Ortiz had an accident almost two weeks after the expiration of the policy, on August 23, 2004 and underwent several medical tests, one with the appellee, Open MRI. The medical provider, Open MRI, sent the bill to appellant for payment, which was declined, and the lawsuit below ensued. The appellee was informed before the litigation that there was no coverage on the date of the accident, for subsequent medical services.
Appellee filed its case in November, 2006, with discovery under oath filed in January, 2007 asserting no coverage. Appellant filed its motion for sanctions and requested attorneys’ fees under Sec. 57.01, F.S., without any response by appellee. Appellant filed its motion for summary judgment in June, 2007, six months after its discovery, and on the eve of the hearing on the summary judgment, the appellee dismissed its cause on June 20, 2007. Appellant seeks attorneys’ fees under Sec. 57.105 for having to defend a meritless claim.
The appellee had ample notice that there was no insurance coverage for the medical claim submitted. At best, appellee should have dismissed its action upon the filing of sworn discovery (in January, 2007) by the insurer, not six months later. After the discovery, the appellee knew or should have known that its claim was not supported by the facts or the law. Boca Burger Inc. v. Forum, 912 So.2d 561 (Fla. 2005), Morton v. Heathcock, 913 So. 2d 662 (Fla. 3rd DCA 2005). If the appellee pursued its complaint on the speculation that the insurer might settle for either nuisance value or other reasons, it failed.
This cause is reversed and remanded to the trial Court to consider attorneys’ fees in favor of appellant, Western General Insurance Company, and appellant’s motion for attorneys’ fees on appeal is granted.
