21 Fla. L. Weekly Supp. 347a
Online Reference: FLWSUPP 2104HARTInsurance — Personal injury protection — Attorney’s fees — Justiciable issue — Insurer is entitled to award of attorney’s fees under section 57.105 where medical provider knew or should have known that it could not prevail when insurer served notice of intent to seek section 57.105 sanctions informing provider that it had been paid in full per statutory fee schedule, yet provider did not file notice of voluntary dismissal until after 21-day safe harbor period had expired
ADVANCED 3-D DIAGNOSTICS (A/A/O JAMIE HARTMAN), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-SC-010887-O, Division 73. January 8, 2014. Honorable Faye L. Allen, Judge. Counsel: Adam Saben, Shuster & Saben, Miami, 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 December 9, 2013. Having considered the motion, court file, applicable law, and the arguments of counsel, the Court finds as follows:
On January 23, 2013, Defendant served on Plaintiff its “Notice of Intent to Move for Sanctions Pursuant to F.S. § 57.105” along with its proposed Motion for Sanctions notifying Plaintiff that Plaintiff had been paid in full under the subject insurance contract, which properly incorporated the fee schedule delineated in Florida Statute Section 627.736(5)(a)2. 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 March 1, 2013 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 baseless 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 been paid in full per the fee schedule properly incorporated into the contract, it certainly knew or should have known that it could not prevail when Defendant served its “Notice of Intent to Move for Sanctions Pursuant to F.S. § 57.105.” See Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] (holding that an insurer may limit reimbursement to the fee schedule delineated in Florida Statute Section 627.736(5)(a)2. as long as it provides for such in its policy). 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. Argyle Chiropractic Center (a/a/o Zecorrie Vann) v. United Services Automobile Association, 20 Fla. L. Weekly Supp. 1218b (4th Jud. Cir. Cty. Ct. 2013); Joseph Ciccarello, D.C., P.A. (a/a/o Vonda Larson) v. State Farm Mutual Automobile Ins. Co., 9 Fla. L. Weekly Supp. 137a (13th Jud. Cir. Cty. Ct. 2001); Medical Rehab and Therapy Center v. State Farm Mutual Automobile Ins. Co., 10 Fla. L. Weekly Supp. 643b (13th Jud. Cir. Cty. Ct. 2001). 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 dismiss its baseless case).
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 the reasonable attorney’s fees and costs it has accrued since January 23, 2013.
c) The Court reserves jurisdiction to determine the amount of reasonable attorney’s fees and costs to be awarded to Defendant.
* * *
