20 Fla. L. Weekly Supp. 1091b
Online Reference: FLWSUPP 2011NERNInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Insurer has failed to prove that voluntarily dismissed case warrants fee award under section 57.105(1) where insurer claims that medical provider was procedurally barred from bringing suit due to its failure to opt out of class action, but insurer presented no evidence that provider actually received notice of class action
TURNER ORTHOPEDICS, PA A/A/O DOUG NERN, Plaintiff, v. USAA CASUALTY INS. CO., Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 2013-000621(M). August 8, 2013. Herbert M. Berkowitz, Judge. Counsel: Adam Saben, Shuster & Saben, Miami, for Plaintiff. Christopher Cavaliere, Herssein Law Group, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORATTORNEY FEES PURSUANT TO F.S. 57.105
THIS CAUSE having come before the Court for hearing on July 9, 2013, on Defendant’s Motion for Attorney Fees pursuant to F.S. 57.105, and the Court having considered the motion, applicable case law, and the arguments of counsel finds as follows:
Plaintiff filed a voluntary dismissal on this case that was outside the 21-day “safe harbor” afforded to a party under Florida Statute 57.105. Following the dismissal, Defendant moved for attorney’s fees and costs based on said statute.
Florida Statute 57.105 states, in pertinent part:
57.105. Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, 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.
(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.
(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:
(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
(b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.
Applying the pertinent portions of the above statute to this case, the proper inquiry from this Court is whether the case when filed, or when presented with the grounds in the Defendant’s motion was frivolous. A case is frivolous when it can be said “to be completely without merit in law or contradicted by overwhelming evidence.” Asinmaz v. Semrau, 42 So.3d 955 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1964c]. Further, the Defendant must present “substantial, competent evidence” showing no justiciable issues of law or fact and that the losing party’s attorney did not act in good faith based on the representations of his or her client. Siegel v. Rowe, 71 So.3d 205 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2169a]. In this case, the Defendant’s position is that the Plaintiff was a member of class action and did not exercise its “opt-out” option from the class and, therefore, is procedurally barred from bringing this case. However, the Defendant presented no evidence showing that the Plaintiff actually received notice of the class action. Therefore, the Defendant has failed to meet any of the proof requirements necessary to make a finding that this case warrants an award of attorney’s fees under Section 57.105, Florida Statutes.1
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1Since there has been no showing that the filing or prosecution of this case was frivolous, this Court does not reach the other conditions precedent under 57.105 that the Defendant must show, such as the Plaintiff’s counsel did not rely on the word of his client, in good faith, that the case had merit when filed; or, that the counsel for the Plaintiff was not making a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. The Court does not reach any conclusions on these issues because it is not necessary for the resolution of this motion.
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