20 Fla. L. Weekly Supp. 919a
Online Reference: FLWSUPP 2009HARMInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Suit brought against insurer that is distinct corporate entity from insurance company that issued policy under which medical provider claims coverage
DR. RANDALL HAAS, (A/A/O HARMON, ZACHARY), Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County, Civil Division. Case No. 16-2012-SC-001863-XXXX-MA. June 13, 2013. Honorable Angela Cox, Judge. Counsel: Courtney J. Johnson, Boca Raton, for Plaintiff. Chris Cavaliere, Herssein Law Group, 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 June 4, 2013. Having considered the motion, court file, applicable law, and the arguments of counsel, the Court finds as follows:
This is an action for Personal Injury Protection benefits in which Plaintiff filed a complaint against USAA Casualty Insurance Company (“Defendant”) alleging that Defendant breached an auto insurance contract providing such benefits.
On May 16, 2012, 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 Defendant did not issue the insurance policy in dispute and that United Services Automobile Association, a closely affiliated insurance company, was in fact the company that issued the policy. 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, waiting until June 18, 2012 to file its Notice of Voluntary Dismissal. As the prevailing party, Defendant now seeks attorney’s fees and costs pursuant to Florida Statute Section 57.105.
Florida Statute Section 57.105 requires that attorney’s fees be awarded in these circumstances. It 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).
This is precisely the type of situation contemplated under the statute. Even if Plaintiff did not know at the time it filed its Complaint that it had failed to sue the proper party, it certainly 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.” Nevertheless, Plaintiff did not file its Notice of Voluntary Dismissal until after the 21-day “safe harbor” period afforded under the statute had expired. Defendant is therefore entitled to recover its reasonable attorney’s fees and costs. See e.g. Central Florida Rehab Center Inc., a/a/o Daphney Buisereth v. Allstate Ins. Co., 16 Fla. L. Weekly Supp. 956b (9th Jud. Cir. Cty. Ct. July 2009); Ricky P. Lockett, D.O., P.A. d/b/a Orthopedic Injury Management, on behalf of Dorthy Martin v. Progressive Consumers Insurance Company, 11 Fla. L. Weekly Supp. 567b (6th Jud. Cir. Cty. Ct. March 2004). 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 filed its Notice of Voluntary Dismissal during the safe harbor period and avoided fees. It failed to do so. Attorney’s fees must be awarded accordingly.
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 May 16, 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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