20 Fla. L. Weekly Supp. 1071a
Online Reference: FLWSUPP 2011RANDInsurance — Attorney’s fees — Proposal for settlement — Prevailing insurer is entitled to attorney’s fees based on $1.00 proposal for settlement — Justiciable issues — Insurer is entitled to fees under section 57.105 where medical provider knew or should have known that it could not prevail on insurer’s claim that purported assignment was mere direction to pay at time insurer filed notice of intent to seek sanctions, yet provider failed to dismiss case during safe harbor period
ACCMED HEALTHCARE SYSTEM, LLC DBA FLORIDA SPINE CARE (A/A/O ALPHONSO RANDALL), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 4th Judicial Circuit in and for Duval County, Civil Division. Case No. 162012SC-002438 XXXX MB, Division Q. August 28, 2013. Honorable Dawn Hudson, Judge. Counsel: Vincent P. Gallagher, Neptune Beach, for Plaintiff. Chris Cavaliere, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FORATTORNEY’S FEES AND COSTS
THIS CAUSE came before this court on Defendant’s Motion for Attorney’s Fees and Costs. A hearing was conducted on May 21, 2013. Having considered the motions, court file, applicable law, and the arguments of counsel, the court finds as follows:Background
This is an action for Personal Injury Protection benefits in which Plaintiff, a health care provider, alleged standing to sue Defendant via a purported assignment that it received from its patient. Alphonso Randall. Defendant challenged Plaintiff’s standing in its Motion for Summary Judgment filed on August 31, 2012, arguing that Plaintiff’s purported assignment was merely a direction to pay and failed to assign to Plaintiff the right to sue under Mr. Randall’s insurance contract.
On the same day, Defendant served on Plaintiff its “Notice of Intent to Seek Sanctions Under F.S. § 57.105” along with its proposed “§57.105 Motion for Sanctions” notifying Plaintiff that its assignment failed to confer standing under the applicable case law. In the same Notice, Defendant informed Plaintiff that it would seek attorney’s fees and costs pursuant to Florida Statute Section 57.105 if Plaintiff did not dismiss its case within the 21-day “safe harbor” period afforded under the statute. Plaintiff failed to do so.
Defendant provided Plaintiff yet another opportunity to resolve the case on October 3, 2012 when it served its Proposal for Settlement in the amount of one dollar. Again, Plaintiff declined to accept Defendant’s invitation. Instead, both parties proceeded to a hearing on Defendant’s Motion for Final Summary Judgment on January 17, 2013. After hearing the arguments and reviewing the language of Plaintiff’s purported assignment along with the applicable law on the issue, this court granted Defendant’s Motion for Final Summary Judgment, executing an order on March 22, 2013.
As the prevailing party, Defendant filed its Motion for Attorney’s Fees and Costs, arguing that it is entitled to same based on its expired Proposal for Settlement and expired Motion for Sanctions Pursuant to Florida Statute Section 57.105. Thereafter, Plaintiff filed a Motion for Rehearing requesting that this court reconsider its ruling on the assignment issue. On May 21, 2013, a hearing was conducted on both Plaintiff’s Motion for Rehearing and Defendant’s Motion for Attorney’s Fees and Costs. This court has already issued a written order denying Plaintiff’s Motion for Rehearing. After closely considering Defendant’s Motion for Attorney’s Fees and Costs along with the applicable authorities, this court finds that attorney’s fees and costs must he awarded to Defendant.Defendant’s Expired Proposal for Settlement
Defendant is entitled to attorney’s fees under its expired Proposal for Settlement pursuant to Florida Statute Section 768.79. The statute states in pertinent part:
In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance . . . if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer . . . .
Fla. Stat. § 768.79(1).
Plaintiff does not appear to dispute Defendant’s entitlement to attorney’s fees under this statute. It does not challenge the reasonableness of Defendant’s one dollar offer or contend that Defendant made the offer in bad faith, and one dollar proposals for settlement in these circumstances are perfectly acceptable anyway. E.g. State Farm Mutual Automobile Ins. Co. v. Lawrence A. Marko, Sol Mayer, 695 So.2d 874 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1505c]. Plaintiff could have avoided fees under this statute by timely accepting Defendant’s offer. Instead, it elected to take its chances and lost. Defendant is entitled to attorney’s fees accordingly.Defendant’s Expired Motion for Sanctions Pursuant to Florida Statute Section 57.105
Defendant is also entitled to attorney’s fees under Florida Statute Section 57.105. The statute states in pertinent part:
Upon the court’s initiative or a 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:
(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.
Fla. Stat. § 57.105(1).
A party seeking attorney’s fees under Florida Statute Section 57.105 may present its motion to the court if, after having served its motion on the opposing party, the opposing party fails to withdraw or correct its claim or defense within 21 days of being served with the motion. Fla. Stat. § 57.105(4).
Even if Plaintiff did not know at the time it filed its complaint that its purported assignment was merely a direction to pay under the applicable law, it knew or should have known that it could not prevail when Defendant served its “Notice of Intent to Seek Sanctions Under F.S. § 57.105” advising it of the applicable authorities. See e.g. Open MRI of Orlando, Inc., a/a/o Raquel Ramos v. State Farm, 17 Fla. L. Weekly Supp. 731a (9th Jud. Cir. App. 2010); Lighthouse Orthopaedic Associates, P.A. (a/a/o Kylee Treyz) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 893a (Fla. 17th Cir. App. 2004); Bohica Orthopaedics and Rehabilitative Medicine, a/a/o Leanne Seals v. Progressive Southeastern Ins. Co., 10 Fla. L. Weekly Supp. 851b (7th Jud. Cir. App. 2003); Physicians Injury Center. Inc. (a/a/o Richard Dietrich). v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 169a (Fla. 13th Cir. App. 2002). Nevertheless, Plaintiff failed to dismiss its fruitless case during the 21-day “safe harbor” period afforded under the statute. Instead, Plaintiff continued to pursue its case until this court granted Final Summary Judgment in Defendant’s favor. Defendant is therefore entitled to recover its reasonable attorney’s fees and costs. In fact, the statute requires such an award. See Ins. Corp. of New York v. M & J Health Center. Inc. a/a/o Julio Ruiz, 13 Fla. L. Weekly Supp. 682a (11th Jud. Cir. App. April 2006) (finding that lower court abused its discretion in denying defendant’s 57.105 motion when plaintiff had waited until after the 21-day “safe harbor” period to file its voluntary dismissal).
Plaintiff could have dismissed its fruitless case during the safe harbor period and avoided fees. It failed to do so. Attorney’s fees must be awarded accordingly.Conclusion
In light of the above, Defendant’s Motion for Attorney’s Fees and Costs is granted. Defendant is entitled to attorney’s fees and costs under both its expired Proposal for Settlement and its expired Motion for Sanctions Pursuant to Florida Statute Section 57.105.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
a) Defendant’s Motion for Attorney’s Fees and Costs is hereby GRANTED.
b) Defendant is entitled to recover reasonable attorney’s fees and costs it has accrued since August 31, 2012.
c) The Court reserves jurisdiction to determine the amount of reasonable attorney’s fees and costs to be awarded to Defendant.
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