20 Fla. L. Weekly Supp. 687c
Online Reference: FLWSUPP 2007WHITInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Medical provider should have known that suit based on assignment of benefits to unregistered fictitious name was frivolous — No merit to claims that insurer’s proposal for settlement was vague for failing to differentiate between offer for benefits and offer for fees and that lump sum proposal creates conflict between attorney and client
CENTRAL FLORIDA INJURY REHABILITATION, (A/A/O WHITE, GAYLE), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012 SC 1019-0, Division 70. April 19, 2013. Honorable Andrew L. Cameron, Judge. Counsel: Steven Johnson, for Plaintiff. David Hwalek, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR ATTORNEYSFEES AND COSTS (as to entitlement)
THIS CAUSE, having come before this Court upon Defendant’s Second Amended Motion for Attorneys Fees and Costs, the Court having heard arguments of both parties’ counsel, reviewed the record evidence before the Court, and the Court having been otherwise advised in the premises, the Court rules as follows:
Background: This is a PIP case in which the lawsuit was served to United Services Automobile Association [USAA] on March 1, 2012. Said lawsuit was based on an assignment of benefits to Central Florida Injury. USAA served its Answer and Affirmative Defenses which informed the Plaintiff that pursuant to Fla. Stat. 865.09 and the Orange County Circuit Court case of New Hampshire v. Equinox [11 Fla. L. Weekly Supp. 172a] it cannot maintain this lawsuit because the assignment is to an unregistered fictitious entity. The Plaintiff later moved to amend its Complaint to name Central Florida Injury Southwest, Inc., alleging that the name of Central Florida Injury Rehabilitation was a scriveners’error. The Court granted the Plaintiff’s motion to amend to name Central Florida Injury Southwest, Inc. as the sole Plaintiff in this lawsuit. The Plaintiff has admitted via its responses to admissions that the assignment was to Central Florida Injury, and that Central Florida Injury is an unregistered fictitious entity.
USAA served its Motion for Summary Judgment based on the fact that the Plaintiff did not have an assignment of benefits and the assignment was to an unregistered fictitious entity. On September 25, 2012, this Court granted USAA’s Motion for Summary Judgment. In granting the Motion for Summary Judgment, the Court cited to its prior ruling granting Progressive’s Motion for Summary Judgment in the case of Kevin J. Yates, D.C., P.A. d/b/a Yates Chiropractic Associates, a/a/o Dawson Rodriguez v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 1105a (Fla. 9th Jud. Cir. Cty. Ct., September 12, 2008). In Yates, this Court found that the assignment of benefits was to Yates Chiropractic Associates, which was an unregistered fictitious entity at the time the assignment was executed, and Yates Chiropractic Associates remained an unregistered fictitious entity at the time the lawsuit was filed. Citing to the Orange County Circuit Court case of New Hampshire v. Equinox case, the Yates court held “a healthcare provider who has used an unregistered fictitious name in violation of Florida Statutes, Section 865.09 . . . on the assignment of benefits, cannot recover benefits under Florida Statutes, 627.736(5).” The Yates Court continued with “this Court finds that the Plaintiff’s violation of Florida Statute 865.09 was fatal to the proper execution of the assignment of benefits Plaintiff relied upon to confer standing”.
In granting USAA’s Motion for Summary Judgment in this case the Court ruled that the “Plaintiff’s violation of Florida Statute 865.09 is fatal to the proper execution of the assignment of benefits Plaintiff relied on to confer standing”.
Additionally in granting USAA’s Motion for Summary Judgment the court stated “only the insured would have the right to bring suit in this case. See Progressive v. Hartley, 21 So.3d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c] [The DCA agreed with the lower court that because the assignment of benefits was to an unregistered fictitious name, the right to bring a lawsuit remained with the insured.]”
USAA served 57.105 Motions based on the fact that the Plaintiff had no standing to file this lawsuit. USAA complied with the Fla, Stat. 57.105 requirements of filing the 57.105 Motion, including the requirement that a 57.105 Motion is not to be filed until subsequent to the 21 day safe harbor period expired.
USAA also served a proposal for settlement in this lawsuit pursuant to Fla. R. Civ. Pro. 1.442 and Fla, Stat. 768.79. Said proposal for settlement was not filed with the Court until subsequent to the Court granting USAA’s Motion for Summary Judgment.
The Plaintiff has made an argument that USAA’s proposal is vague and ambiguous, and therefore invalid, because the offer made was a lump sum amount, and did not differentiate between the offer of benefits and the offer of attorneys fees. Although not binding on this Court, this Court rejects the Plaintiffs argument and agrees with Judge Lee’s ruling in the case of Healthy Life Therapy & Rehab, Inc. v. Progressive Auto Pro Insurance Company, 13 Fla. L. Weekly Supp. 638a (Fla. 17th Judicial Circuit, County Court, 2006). In Healthy Life, the court concluded “that the lump sum offered did not include a breakdown between damages and fees. The applicable rule does not require that the offer contain a breakdown. Rather, the rule simply requires the offer to state whether it includes attorneys fees”.
The Plaintiff also made the argument that USAA’s proposal creates a conflict between the attorney and the client. This Court agrees with the reasoning in Crigler v. State of Florida, 535 So. 2d 329 (Fla. 1st DCA, 1988) [13 Fla. L. Weekly D2728], which rejected the argument that a parties’ lump sum offer created a conflict between the attorney and its client.
This Court finds that based upon this Court’s prior ruling in Kevin J. Yates, D.C., P.A. d/b/a Yates Chiropractic Associates, a/a/o Dawson Rodriguez v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 1105a (Fla. 9th Jud. Cir. Cty. Ct., September 12, 2008) the binding case of Progressive v. Hartley, 21 So.2d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D229c] and the facts of this lawsuit, that the Plaintiff and Plaintiff’s attorneys should have known that its lawsuit was frivolous [and therefore USAA is entitled to reasonable attorneys fees pursuant to Fla. Stat. 57.105]. Both the Yates and Hartley were published cases decided years before the present lawsuit was filed.
Additionally, this Court finds that based upon this Court’s prior ruling in Kevin J. Yates, D.C., P.A. d/b/a Yates Chiropractic Associates, a/a/o Dawson Rodriguez v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 1105a (Fla. 9th Jud. Cir. Cty. Ct., September 12, 2008), the binding case of Progressive v. Hartley, 21 So.2d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D229c], and the facts of this lawsuit, that USAA had a good faith basis to serve its proposal for settlement [and therefore USAA is entitled to reasonable attorneys fees and costs pursuant to the expired proposal for settlement]. “The obligation of good faith merely insists that the offeror have some reasonable foundation on which to base an offer.” Schmidt v. Former, 629 So. 2d 1036 (Fla. 4th DCA 1993) [19 Fla. L. Weekly D44].
Based upon the arguments of counsel, the evidence filed with this Court it is hereby:
ORDERED AND ADJUDGED that this Court specifically finds that Plaintiff and Plaintiff’s attorneys knew or should have known that this claim, when initially presented, was not supported by the material facts necessary to establish the claim and would not be supported by the application of then existing law to the material facts. It is further
ORDERED AND ADJUDGED that the USAA has met its burden under Fla. Stat. 57.105 with regard to the Plaintiff and Plaintiffs attorneys and is entitled to reasonable attorney’s fees. It is further
ORDERED AND ADJUDGED that USAA’s proposal for settlement is compliant with Fla. Stat. 769.79 and Fla. R. Civ. P. 1.4420, and was also made in good faith. Therefore, USAA is entitled to reasonable attorney’s fees and costs. It is further
ORDERED AND ADJUDGED that this Court retains jurisdiction to determine the amount of attorneys fees and costs.
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