17 Fla. L. Weekly Supp. 194a
Online Reference: FLWSUPP 1703THOMInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Where benefits had not been exhausted at time suit was filed, and there was no evidence to suggest claim lacked merit, insurer’s motion for attorney’s fees is denied
PREZIOSI W/EAST ORLANDO CHIROPRACTIC CLINIC, P.A, as assignee of Kenneth Thomas, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2006-SC-11336. January 25, 2010. Antoinette Plogstedt, Judge. Counsel: Michael Tierny, Winter Park. Robert Bartels, Orlando.
ORDER DENYING DEFENDANT’S MOTION FOR ATTORNEY’S FEES AND COSTS PURSUANT TO FLORIDA STATUTE §57.105 AND FLORIDA RULES OF CIVIL PROCEDURE 1.525
THIS CAUSE having come before the Court on January 13, 2010, and the Court having reviewed the Motion(s) and being otherwise duly advised in the premises, it is hereby
ORDERED AND ADJUDGED:
1. Defendant’s Motion for Attorney’s Fees and Costs is DENIED. In April 2006, Plaintiff filed suit against Defendant for PIP benefits. In March 2007, the policy benefits were exhausted. In August 2009, Defendant served Plaintiff with its Motion for Attorney’s Fees and Costs pursuant to Florida Statute §57.105 and Florida Rules of Civil Procedure 1.525. At the time Plaintiff filed suit there was no evidence to suggest that its claim lacked merit. In fact, the Court noted that case law was in Plaintiff’s favor as to the issue of benefits exhausted at the time suit was filed. The issue of benefits exhausted was resolved by the Fifth District Court of Appeals in the case of Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (5th DCA 2008).
