21 Fla. L. Weekly Supp. 270a
Online Reference: FLWSUPP 2103HERNInsurance — Personal injury protection — Attorney’s fees — Justiciable issue — Unauthenticated hearsay PIP payout sheet is insufficient evidence of exhaustion of benefits to support imposition of statutory fee award
B & A DIAGNOSTIC, INC. a/a/o DAMAYANTI HERNANDEZ, Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-11213 SP 25 (4). November 26, 2013. Nuna Saenz, Judge. Counsel: Munir D. Barakat and Jennifer M. Cruz, Barakat Legal, P.A., Coral Gables, for Plaintiff. Scott Danner, Kirwan, Spellacy & Danner, P.A., Fort Lauderdale, for Defendant.
ORDER ON PLAINTIFF’S MOTION RECONSIDERATIONAND REHEARING REGARDING DEFENDANT’SMOTION FOR ENTITLEMENT OF ATTORNEYFEES AND COST UNDER 57.105
THIS CAUSE having come before the Court upon Plaintiff’s Motion Reconsideration and Rehearing Regarding Defendant’s Motion for Entitlement of Attorney Fees and Cost under 57.105, the Court after hearing argument of counsel on this issue hereby holds as follows:
ORDERED AND ADJUDGED, as follows:
1- Plaintiff’s Motion for Reconsideration and Rehearing is hereby- Granted. In accordance with the rulings in Margulies v. Levy, 439 So. 2d 336 (Fla. 3rd DCA 1983) and Fla. R. Civ. P. 1.530; 1.540.
2- Defendant’s Motion for Entitlement of Attorney’s Fees and Cost Under 57.105- is hereby –Denied. Florida statute 57.105 is a statute authorizing an award of attorney’s fees as such it is in derogation of common law and accordingly such statute must be strictly construed. Kittel v. Kittel 210 So. 2d 1 (Fla. 1968). In accordance to Florida Stat. 57.105 an award of attorney’s fees is authorized only if a party or its representative “knew or should have known” that claims or defense is unsupported by material facts necessary to establish the claim or unsupported by the application of then existing law to those material facts. “Material facts” means the party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact. Albritton v. Ferrera, 913 So. 2d 5 (Fla 1st DCA 2005) [30 Fla. L. Weekly D2099a]. An order awarding attorney fees under Fla. Stat. 57.105 must include findings by the trial court to support the award. Goldberg v. Watts, 864 So. 2d 59, 60 (Fla 2nd DCA 2003) [28 Fla. L. Weekly D2879c]; Department of Revenue v. Marchines, 974 So. 2d 1085 (Fla. 2nd DCA 2007) [32 Fla. L. Weekly D743a].
In the present case, the Defendant’s correspondence and motion pursuant to Fla. Stat. 57.105 attaches an unauthenticated hearsay PIP payout sheet in support of an allegation that benefits are in fact exhausted. The statute requires this Court to make a factual finding that the Plaintiff’s claim is unsupported by material facts or application of law to then existing law to material facts prior to imposition of statutory award of attorney fees in derogation of common law. Such unverified correspondence and unverified motion attaching hearsay documents are insufficient under the statute to trigger entitlement to fees under the statute.
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