20 Fla. L. Weekly Supp. 1228a
Online Reference: FLWSUPP 2012PENDAttorney’s fees — Justiciable issues — Insurance — Personal injury protection — Defendant’s motion to tax fees and costs pursuant to section 57.105 is denied based upon finding that neither plaintiff nor plaintiff’s attorney knew or should have known that plaintiff’s claim of assignment was not supported by material facts necessary to establish claim or by the application of then-existing law to those material facts — Moreover, claim was initially presented to court as a good faith argument for 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 — Finally, losing party’s attorney acted in good faith, based on representations of client as to material facts
TURNER ORTHOPEDICS, PA., A/A/O LAURA PENDLETON, Plaintiff vs. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant. County Court, 12th Judicial Circuit in and for Manatee County. Case No. 2012 SC 3062. August 15, 2013. Mark D. Singer, Judge. Counsel: Adam Saben, Miami, for Plaintiff. John R.H. Henley, Oxendine & Oxendine, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT’SMOTION TO TAX FEES AND COSTS PURSUANTTO §57.105, FLORIDA STATUTES
THIS CAUSE having come before the Court for a hearing on August 14, 2013 upon the Defendant’s Motion to Tax Fees and Costs Pursuant to §57.105, Florida Statutes and the parties hereto having appeared through counsel and the Court having heard argument of the parties, and being otherwise fully advised in the premises, does hereby find and conclude as follows:
1. In its Motion to Tax Costs and fees Pursuant to §57.105, Florida Statutes, the Defendant asserts and the Plaintiff does not refute that it complied with all conditions precedent to the award of attorney fees and costs pursuant to §57.105, Florida Statutes.1
2. In its Motion, the Defendant asserted that the Plaintiff did not have standing as an assignee of Laura Pendleton to bring suit for unpaid PIP benefits because the assignment of benefits was to Fred Turner, M.D., not to the Plaintiff, Turner Orthopedics, PA.
3. Notwithstanding the serving of the Motion to Tax fees and Costs, the Plaintiff did not withdraw the claim.
4. Thereafter, the Defendant’s Motion for Summary Judgment and the Plaintiff’s Counter Motion for Summary Judgment were heard by this Court on March 27, 2013.
5. On May 14, 2013, this Court entered an Order Granting the Defendant’s Motion for Summary Judgment and Denying the Plaintiff’s Counter Motion for Summary Judgment. In it order, the Court determined as a matter of law that the Plaintiff did not have standing to bring the cause of action for PIP benefits against the Defendant because Fred Turner, MD., was the assignee of Laura Pendleton’s benefits, not the Plaintiff, Turner Orthopedics, PA. . The order amounted to a final judgment in favor of the Defendant, from which no appeal has been taken.
6. The Defendant now asserts that it is entitled to its attorney fees and costs pursuant to §57.105, Florida Statutes.
7. §57.105, Florida Statutes provides, in part:
“(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 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.
(Subsection (2) omitted)
(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 upon the representations of his or her client as to the existence of those material facts.”
This Court has examined and re-examined the Plaintiff’s Counter Motion for Summary Judgment with Respect to “Standing” in Response to Defendant’s Motion for Full and Final Summary Judgment, filed March 4, 2013, and the legal arguments presented therein. Additionally, this Court has reflected upon the arguments made by counsel for their respective parties at the March 27, 2013, hearing on their respective Motions for Summary Judgment. The Court finds that neither the Plaintiff nor the Plaintiff’s attorney knew or should have known that its claim of assignment to Turner Orthopedics, PA., was not supported by material facts necessary to establish the claim or by the application of then-existing law to those material facts. Further, even assuming arguendo that they should have known, the Court finds that the claim 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. Lastly the Court finds that the losing party’s attorney acted in good faith, based on the representations of his client as to the existence of the material facts. Therefore, it is
ORDERED AND ADJUDGED Defendant’s Motion to Tax Fees and Costs Pursuant to §57.105, Florida Statutes is hereby DENIED.
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1§57.104(4), Florida Statutes, provides that the party seeking sanctions must serve a copy of the motion giving the opposing party 21 days after service to withdraw the challenged paper, claim, defense, contention, allegation or denial. A Notice of the Motion for Attorney Fees and Costs was filed with the Court on September 27, 2012 and the Motion to Tax fees and Costs was filed on November 5, 2012, well in excess of 21 days.
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