20 Fla. L. Weekly Supp. 589b
Online Reference: FLWSUPP 2006BAEZInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Where medical provider pursued claim against insurer in spite of knowing that it had no standing to sue because insured had revoked assignment of benefits, insurer is entitled to award of attorney’s fees
SPINE REHABILITATION CENTER, INC, (a/a/o MANUEL BAEZ), Plaintiff vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE Company, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, County Civil Division. Case No. 06-CC-017263, Division I. January 29, 2013. Joelle Ann Ober, Judge.
ORDER ON ENTITLEMENT TO ATTORNEY’S FEES
THIS MATTER is before the Court on Defendant’s “Motion for Entitlement to Attorney’s Fees and Costs,” filed on October 29, 2009. The Court, after considering Defendant’s “Motion for Entitlement to Attorney’s Fees and Costs,” the court file, and the records, finds as follows:
PROCEDURAL HISTORY
On November 4, 2005, Manuel Baez executed an “Assignment of Benefits Form assigning Personal Injury Protection Coverage” assigning insurance benefits to Spine Rehabilitation Center, Inc. On June 12, 2006, Manuel Baez executed a “Revocation of Assignment of Benefits.” On April 5, 2006, Plaintiff mailed a “Notice of Intent to Initiate Litigation” to Defendant, demanding that Defendant deposit into the trust account of Timothy A. Patrick, P.A. $9,972.00 in payments allegedly owed Defendant. On June 28, 2007, Plaintiff served Defendant with a “Second Amended Petition for Declaratory Judgment and Complaint.” On August 18, 2008, the Court entered an “Order Granting Defendant’s Motion for Partial Final Summary Judgment as to Count II and Granting Defendant’s Motion for Reconsideration.” On October 5, 2009 the Court entered a “Final Summary Judgment” in favor of Defendant on all counts. Defendant filed the present “Defendant’s Motion for Entitlement to Attorney’s Fees and Costs” on October 29, 2009. The Court received evidence and testimony, and heard argument at a hearing on November 15, 2012.
DISCUSSION
Before awarding fees under § 57.105 Fla. Stat. (2009), the Court must find that the losing party or its 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.” Statutory attorney fees are awarded when there is a total or absolute lack of justiciable issues of either law or fact, this being tantamount to a finding that the action is frivolous or completely untenable. Vasquez v. Provincial South, Inc., 795 So.2d 216 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2329a]; Visoly v. Security Pacific Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2003a].
§ 57.105 Fla. Stat., which authorizes attorney’s fees for frivolous claims, is applicable to any claim or defense, and does not require that the entire action be frivolous. § 57.105 Fla. Stat. provides that an award of attorney’s fees on any claim or defense at any time during a civil proceeding or action, “if the claim was not supported by the material facts necessary to establish the claim,” or “would not be supported by the application of then-existing law to those material facts.” See Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D2173a].
In the instant case, the Court finds that Plaintiff knew or should have known of the existence of the “Assignment of Benefits Form Assigning Personal Injury Protection Coverage,” and subsequent “Revocation of Assignment of Benefits,” particularly where Plaintiff’s attorney Timothy Patrick drafted the “Revocation of Assignment Benefits” himself. Plaintiff and its counsel pursued this claim in spite of knowing or having reason to know that Plaintiff had no standing to sue. Consequently, Defendant is entitled to an award of attorney’s fees under § 57.105(1) Fla. Stat. (2009).
ORDER
It is therefore ORDERED that Defendant’s Motion for Entitlement to Attorney’s Fees and Costs is GRANTED.
It is further ORDERED that the Court reserves ruling with regard to the determination of the apportionment of attorney’s fees, costs and interest between the Plaintiff and the Plaintiff’s attorney until it has determined the total amount of attorney’s fees and costs that will be awarded to Defendant.
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