20 Fla. L. Weekly Supp. 692a
Online Reference: FLWSUPP 2007PUTNInsurance — 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
PUTNAM FAMILY CARE, INC., D/B/A ST. JOHNS URGENT CARE, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, AND AVIS RENT A CAR SYSTEM, LLC., Defendant. County Court, 7th Judicial Circuit in and for Putnam County, Civil Division. Case No. 11-0972 SC. April 26, 2013. Elizabeth A. Morris, Judge.
ORDER ON DEFENDANT’S MOTION FORATTORNEY’S FEES AND COSTS
THIS CAUSE, having come before the Court on November 9, 2012, on Defendant’s Motion for Attorney’s Fees and Costs [on the issue of entitlement to reasonable attorneys fees and costs], and the Court having heard arguments of both parties’ counsels, reviewed the entire Court file, the relevant legal authority, and being duly advised in the premises, the Court enters the following findings of fact and conclusions of law:
FINDINGS OF FACTS
1. On October 28, 2011, the Plaintiff filed this lawsuit.
2. A pretrial conference was scheduled for December 2, 2011, but was cancelled as the USAA Casualty Insurance Company was not yet served with the lawsuit.
3. On January 4, 2012, USAA Casualty Insurance Company was served with this lawsuit.
4. On January 5, 2012, USAA Casualty Insurance Company’s defense counsel served its Notice of Appearance, its Motion for Summary Disposition, and its 57.105 Motion for Sanctions. Said documents were faxed to Plaintiff’s counsel on January 5, 2012. The aforementioned documents were received by Plaintiff’s counsel on January 5, 2012.
5. Defendant USAA Casualty Insurance Company’s Motion for Summary Disposition and its 57.105 Motion for Sanctions was based on the fact that USAA Casualty Insurance Company did not insure John Scappelati.
6. The only insurance policy in this lawsuit and Defendant’s 57.105 Motion at issue is an insurance policy issued to Clifford Woodward. Clifford Woodward was driving a rental vehicle in which John Scappelleti was a passenger. The Plaintiff is seeking coverage in this lawsuit for John Scappelleti based on the insurance policy issued to Clifford Woodward, allegedly by [as asserted by the Plaintiff] USAA Casualty Insurance Company.
7. Defendant USAA Casualty Insurance Company’s Motion for Summary Disposition and its 57.105 Motion for Sanctions each attached a declarations page clearly indicating that Garrison Property and Casualty Insurance Company issued an insurance policy to Clifford Woodward.
8. On January 6, 2012, the pre trial conference was held, of which USAA Casualty Insurance Company’s defense counsel appeared in person, and Plaintiff’s counsel appeared telephonically. At said pre trial conference, Plaintiff’s counsel asserted that it had reached a settlement with Avis Rent a Car. Plaintiff’s counsel also stated that it would dismiss the case after Avis Rent a Car issues the payment it agreed to in the settlement.
9. Because Defendant USAA Casualty Insurance Company did not receive a Voluntary Dismissal within 21 days, it attempted to proceed to set its Motion for Summary Disposition. However, because the Plaintiff refused to provide dates, on February 13, 2012 it served its Motion to Compel Plaintiff to Provide Hearing Dates on Defendant’s Motion for Summary Disposition as Directed by the Court at the Pre Trial Conference. A notice for this issue was served on March 9, 2012 [the hearing on same was set for 5-22-12].
10. On or about March 15, 2012, Counsel for Plaintiff served a Notice of Voluntary Dismissal with Prejudice in the above-styled action. The Court’s docket reflects that said Notice was filed on March 21, 2012.
11. The 21 day safe harbor permitted by Florida Statute 57.105 expired [for the Plaintiff to serve a dismissal] on January 26, 2012.
12. Notwithstanding Plaintiff’s counsel’s allegation that he sent a copy of the Voluntary Dismissal to Defendant USAA Casualty Insurance Company on 3-15-12, this Court finds that the Defendant did not receive a copy of the Plaintiff’s dismissal until May 3, 2012. Said dismissal was sent by Valery Evans-Leonard of the Putnam County Court, not by the Plaintiff. This is verified by Defendant’s affidavit served on August 17, 2012. There is no sworn testimony in opposition to said affidavit.
13. Notwithstanding Plaintiff’s allegation that the insurance policy at issue in this lawsuit clearly indicates insurance coverage “through USAA and Garrison Property and Casualty”, this Court finds that insurance coverage was clearly only through Garrison Property and Casualty Insurance Company, and not USAA Casualty Insurance Company.
14. Notwithstanding Plaintiff’s counsel’s allegation that 2-7-12 he had a conversation [allegedly in which the Defendant’s attorney stated it “was fine” for the Plaintiff to wait until the check from Avis was received] with an attorney from Defendant USAA Casualty Insurance Company’s defense counsel’s office, this Court finds that said conversation did not occur. This is verified by Defendant’s affidavit served on August 17, 2012. There is no sworn testimony in opposition to said affidavit.
15. Notwithstanding Plaintiff’s counsel’s allegation that “oral agreement between attorneys as to settlement are binding, and no objection had ever been taken as to the proposed language of the Voluntary Dismissal, including specifically the language ‘each party to be responsible for its own costs and fee’ ”, this Court finds that not only was there no oral agreement, but in fact counsel for Defendant did timely object to the aforementioned language within via its timely served Motion for Attorneys Fees and Costs. This is verified by Defendant’s affidavit served on August 17, 2012. There is no sworn testimony in opposition to said affidavit.
16. Notwithstanding Plaintiff’s counsel’s allegation that a copy of the proposed Voluntary Dismissal was sent on January 24, 2012 via email, this Court finds that the copy of the proposed Voluntary Dismissal was received by the Defendant USAA Casualty Insurance Company for the first time on May 14, 2012. This is verified by Defendant’s affidavit served on August 17, 2012. There is no sworn testimony in opposition to said affidavit.
17. Notwithstanding Plaintiff’s counsel’s allegation that a copy of an “email reflecting settlement with Avis was faxed to the attorney for USAA as a courtesy on January 6, 2012”, this Court finds that the copy of the email reflecting settlement with Avis was received by the Defendant USAA Casualty Insurance Company for the first time on May 14, 2012. This is verified by Defendant’s affidavit served on August 17, 2012. There is no sworn testimony in opposition to said affidavit.
CONCLUSIONS OF LAW
18. Based on the case law of Tannenbaum v. State Farm, 10 Fla. L. Weekly Supp. 478b (Fla. 13th Judicial Circuit, Circuit Court in Appellate Capacity, 2003), Louis v. South Broward Hospital District, 353 So. 2d 562 (Fla. 4th DCA, 1977), Johnson v. Taylor Rental, 485 So. 2d 845 (Fla. 2d DCA, 1984), United Health v. USAA Casualty Insurance Company, Case No. 2011-CC-008403-O, (Fla. 9th Judicial Circuit, County Court, 2012), Dr. Alan Freedman v. USAA General Indemnity Company, Case No. 11-08865 COCE 56 (Fla. 17th Judicial Circuit, County Court, 2011), Dr. Alan Freedman v. USAA General Indemnity Company, Case No. 11-08864 COCE 56 (Fla. 17th Judicial Circuit, County Court, 2011), Stanley J. Feinman v. USAA Casualty Insurance Company, Case No. 09056759 (Fla. 17th Judicial Circuit, Circuit Court, 2011), Reuben M. Hoch v. USAA Casualty Insurance Company, Case No. 10-12176 COCE 51, (Fla. 17th Judicial Circuit, County Court, 2011) and PVC v. State Farm Fire and Casualty Company, 16 Fla. L. Weekly Supp. 768c (Fla. 13th Judicial Circuit, County Court, 2009), this Court finds that case law is clear and well established that a new party cannot be substituted for an existing named party. This Court further finds that Garrison Property and Casualty Insurance Company is a distinct corporate entity from USAA Casualty Insurance Company, and that the lawsuit against USAA Casualty Insurance Company could not proceed.
19. Because Garrison Property and Casualty Insurance Company issued the insurance policy that the Plaintiff claims coverage for, it is clear that the Plaintiff and the Plaintiff’s attorney knew or should have known that its lawsuit against USAA Casualty Insurance Company 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.
20. Because the Plaintiff did not timely dismiss its lawsuit against USAA Casualty Insurance Company, the Defendant USAA Casualty Insurance Company has met its burden under Fla. Stat. 57.105 with regard to the Plaintiff and Plaintiff’s attorneys and is entitled to attorneys fees and costs.
21. This Court reserves jurisdiction to determine the amount of USAA Casualty Insurance Company’s at a subsequent hearing.
22. Based upon the arguments of counsel and the evidence filed with this Court, it is hereby:
ORDERED AND ADJUDGED that the Court finds, as stated above, that the Defendant USAA Casualty Insurance Company is entitled to reasonable attorneys fees and costs based on Fla. Stat. 57.105. Furthermore, this Court retains jurisdiction to determine the amount of attorneys fees and costs.
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