17 Fla. L. Weekly Supp. 916b

Online Reference: FLWSUPP 1710JEANInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Appeal of order denying insurer’s motion for sanctions against medical provider that refused to dismiss PIP log count after issuance of appellate decision on issue and granting provider’s competing motion for sanctions for insurer’s refusal to withdraw its motion for sanctions — Order awarding sanctions payable within 30 days is immediately ripe for review, whereas denial of insurer’s motion for sanctions is not immediately reviewable — Motion for 57.105 attorney’s fees is a claim for which 57.105 fees may be awarded — Error to award sanctions against insurer where insurer’s motion for sanctions was based on application of then-existing case law to facts of case, and trial court failed to make finding that there was complete absence of justiciable issue of law or fact raised by motion — Mere fact that insurer lost on motion for sanctions against provider is not sufficient basis for imposing sanctions for failure to raise justiciable issue

UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. WEST HOLLYWOOD PAIN & REHABILITATION, a/a/o Kathleen Jean, Respondent. Circuit Court (Appellate), 17th Judicial Circuit in and for Broward County. Case No: 09-67172 CACE (09). L.T. Case No. 07-04511 COCE (50). May 11, 2010. Counsel: Thomas L. Hunker, United Automobile Insurance Co., Office of the General Counsel, Miami, for Petitioner. Joseph R. Dawson.

ORDER ON MOTION FOR REHEARING AND PETITION FOR WRIT OF CERTIORARI

(DAVID KRATHEN, J.) THIS CAUSE came before the Court on United Automobile Insurance Company’s (“UAIC”) Motion for Rehearing of the Court’s Order on Petition for Writ of Certiorari. The Court having considered same and the applicable law finds and decides as follows:

UAIC timely filed a Petition for Writ of Certiorari of the trial court’s order awarding Respondent sanctions on December 15, 2009. This Court inadvertently issued two separate orders to show cause (on January 7, 2010 and January 20, 2010). Respondent filed a Response on February 22, 2010. On March 25, 2010, this Court issued an agreed order granting UAIC an extension of time to file a Reply to Respondent’s Response. UAIC’s Reply was due by April 19, 2010. On April 10, 2010, this Court inadvertently ruled on the writ before the expiration of UAIC’s extension. Thus, UAIC’s Motion for Rehearing is well taken, and the Court will reconsider its previous order which summarily denied the Petition for Writ of certiorari.

In the lower court case, Respondent filed a multiple count complaint, including an action seeking declaratory relief as to UAIC’s obligation to provide Respondent with a PIP log or its equivalent. Approximately ten days after the filing of the complaint, the Third District Court of Appeal rendered a decision interpreting the statutory requirement of a PIP log. Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc., 32 Fla. L. Weekly D1396a, 2007 WL 1542019 (Fla. 3rd DCA May 30, 2007). Relying on this decision, UAIC sent Respondent a 21-day notice letter requesting dismissal of the PIP log count on March 3, 2008. Thereafter on March 12, 2008, Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc. was finalized. Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc. 975 So.2d 1247 (Fla. 3rd DCA 2008), rev. dismissed 985 So.2d 1091 (Fla. 2008). Respondent refused to dismiss the PIP log count, and UAIC filed a motion for sanctions. Respondent then served UAIC with a 21-day notice of its own seeking withdrawal of UAIC’s motion for sanctions. When UAIC refused to withdraw its motion, Respondent filed a motion for sanctions. At the conclusion of the hearing on the two motions, the court denied UAIC’s motion and granted Respondent’s motion. UAIC timely filed a Petition for Writ of Certiorari.

The Circuit Court has jurisdiction to review nonfinal orders of lower tribunals by common law certiorari. Rules of Appellate Procedure Rule 9.030(c). When certiorari is used to review an unappealable pretrial order, the party seeking review must show that the order is a departure from the essential requirements of law and that the harm resulting from the error cannot be cured on appeal from the final judgment. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987); See also Hewlett v. State, 661 So. 2d 112 (Fla. 4th DCA 1995). In this case, UAIC petitions the Court to quash the trial court’s order awarding sanctions payable within thirty (30) days. An order that imposes sanctions and requires payment forthwith without such order being subject to the possibility of being set aside at a later time is immediately ripe for review. See Avril v. Civilmar, 605 So.2d 988, 989 (Fla. 4th DCA 1992). UAIC also suggests that its motion should have been granted. Unlike Avril, the trial court’s denial of UAIC’s motion is not immediately reviewable. Thus, this Court’s review of the instant petition is limited to a review of the trial court’s order awarding sanctions only.

Section 57.105 mandates sanctions for frivolous or meritless claims or defenses. Fla. Stat. §57.105. Before Respondent could be entitled to section 57.105 fees, they would have to establish three elements: 1) whether UAIC’s motion for section 57.105 fees was a claim as that term is used in the statute; 2) whether the claim was supported by material facts or the application of existing law to the facts; and if not 3) whether UAIC knew or should have known it was not. See Albritton v. Ferrera, 913 So.2d 5, 9 (Fla. 1st DCA 2005). As in Albritton, there is no dispute that a motion for 57.105 fees is a claim as anticipated by the statute. Id.

Section 57.105 requires an explicit finding by the trial court that there was a complete absence of a justiciable issue of law or fact raised by the claimant. See Vasquez v. Provincial South, Inc., 795 So.2d 216, 218 (Fla. 4th DCA 2001); see also Tunnage v. Green, 947 So.2d 686 (Fla. 4th DCA 2007), rehearing denied. “There must be some finding on record, supported by substantial competent evidence, in order for the trial court to award attorney’s fees and costs.” Id. In the case at bar, the record clearly shows that UAIC’s motion for sanctions was predicated upon its interpretation of then-existing case law and its application to the facts of the case. Moreover, the trial court failed to make any specific finding that there was a complete lack of a justiciable issue of law or fact raised by UAIC’s motion for sanctions. At the hearing on the motions, Respondent argued that a two-step analysis was the appropriate approach to the competing motions: 1) was Respondent’s PIP log count meritless; and 2) if not, UAIC’s motion for sanctions must necessarily be meritless. In other words, Respondent argued that UAIC’s motion must be meritless if UAIC did not prevail on its motion. Unfortunately, the trial court agreed with Respondent. The Court finds that this representation to the trial court lacks candor. Respondent failed cite to any authority for this proposition, and in fact, this Court fails to find any such authority. Quite the contrary, merely losing is not a sufficient basis to permit an award of attorney’s fees to the opposing party on the theory that the losing party failed to raise any justiciable issue. Davis v. Christmas, 705 So.2d 38 (Fla. 3rd DCA1997), rehearing denied. This Court, therefore, finds that the trial court departed from the essential requirements of the law in granting Respondent’s motion for sanctions and awarding same.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED, and the trial court’s order awarding sanctions to Respondent is hereby QUASHED.