21 Fla. L. Weekly Supp. 265a
Online Reference: FLWSUPP 2103MCCLInsurance — Attorney’s fees — Justiciable issue — Attorney’s fees are awarded to insurer where, despite being served with notice of intent to seek section 57.105 sanctions, medical provider waited until after 21-day safe harbor period to file notice of voluntary dismissal
BEACHES OPEN MRI, LLC a/a/o KATHLEEN MCCLUSKEY, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2012-SC-004674-XXXX-MA, Division K. December 13, 2013. Sharon H. Tanner, Judge. Counsel: Melissa M. Lewis, for Plaintiff. Chris Cavaliere, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR ATTORNEY’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 October 17, 2013. Having considered the motion, court file, applicable law, and the arguments of counsel, the Court finds as follows:
On December 5, 2012, Defendant served on Plaintiff its “Notice of Intent to Seek Sanctions under F.S. 57.105” along with its proposed “F.S. 57.105 Motion for Sanctions” notifying Plaintiff that it lacked standing to bring this suit and that Plaintiff had been paid in full under the subject insurance contract. In the same Notice, Defendant informed Plaintiff that it would seek attorney’s fees and costs pursuant to F.S. 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 June 8, 2013 to prepare its Notice of Voluntary Dismissal. As the prevailing party, Defendant now seeks attorney’s fees and costs pursuant to F.S. 57.105. (Said Notice of Voluntary Dismissal has not been filed with the Court.)
This is precisely the type of situation contemplated under the statute and Defendant is therefore entitled to recover its reasonable attorney’s fees and costs. See e.g. Central Florida Rehab Center, Inc., a/a/o Daphney Buisereth v. Allstate Ins. Co., 16 Fla. L. Weekly Supp. 956b (9th Jud. Cir. Cty. Ct. July 2009); Ricky P. Lockett, D.O., P.A. d/b/a Orthopedic Injury Management, on behalf of Dorothy Martin v. Progressive Consumers Insurance Company, 11 Fla. L. Weekly Supp. 567b (6th Jud. Cir. Cty. Ct. March 2004). 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 file its voluntary dismissal).
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:
1. Defendant’s Motion for Attorney’s Fees and costs is hereby GRANTED.
2. Defendant is entitled to recover reasonable attorney’s fees and costs it has accrued since December 5, 2012.
3. The Court reserves jurisdiction to determine the amount of reasonable attorney’s fees and costs to be awarded to Defendant.
* * *
