21 Fla. L. Weekly Supp. 700c
Online Reference: FLWSUPP 2107BAPTInsurance — Personal injury protection — Attorney’s fees — Where insurer’s nominal proposal for settlement was rejected by medical provider six months before exhaustion of benefits that resulted in summary judgment in favor of insurer, motion for attorney’s fees based on proposal for settlement was frivolous and not in good faith — Attorney’s fees and costs are awarded to provider
INJURY TREATMENT CENTER OF CORAL SPRINGS, INC. D/B/A CHOICE MEDICAL CENTERS, as assignee of WILBERT JEAN BAPTISTE, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 10-16362 COCE 51. March 31, 2014. Martin R. Dishowitz, Judge. Counsel: Andrea L. Jakob, for Plaintiff. Cory Gorak, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR SANCTIONS, COSTSAND ATTORNEY’S FEES PURSUANTTO FLORIDA STATUTE 57.105
THIS CAUSE came before the Court on March 18, 2014 on Plaintiff’s Motion for Sanctions, Costs and Attorney’s Fees under Florida Statute § 57.105; and the Court having reviewed the entire Court file; reviewed the relevant legal authorities and been sufficiently advised in the premises, finds as follows:BACKGROUND
1. Defendant was served with Plaintiff’s complaint on October 21, 2010.
2. Defendant filed its Motion to Dismiss or about November 15, 2010. Defendant’s Motion to Dismiss was based upon the Assignment of Benefits and Standing.
3. Defendant then served Plaintiff with a proposal for settlement on May 23, 2011 which was rejected by Plaintiff.
4. Defendant subsequently filed its Answer and Affirmative Defenses, on or about June 24, 2011.
5. Defendant enumerated five Affirmative Defenses; including Reasonableness of the pricing, NCCI edit guidelines, Demand Letter, Failure to provide Additional Documentation and Abusive billing practices.
6. Defendant did not file an Affirmative Defense regarding Exhaustion of Benefits.
7. Defendant mistakenly paid the Plaintiff in November, 2011; using Plaintiff’s tax ID number on the draft.
8. On February 24, 2012, Defendant notified Plaintiff by letter that it had paid the benefits to Plaintiff, and therefore, exhausted same.
9. On March 2, 2012, Plaintiff filed a Motion for Final Judgment based upon Confession of Judgment. Likewise, Plaintiff filed “Benefits Exhausted Request for Production” to determine whether benefits were exhausted.
10. A hearing was held on November 27, 2012 and Defendant was provided an opportunity to produce the exhaustion check to determine exactly to whom the benefits were made payable. The hearing was continued to allow Defendant time to produce the exhaustion check to the Court.
11. The following day, on November 28, 2012, after the continuance of Plaintiff’s Motion to Determine Final Judgment based on confession, Defendant filed its Motion for Summary Judgment regarding Benefits Exhausted and Motion for Attorney’s Fees and Costs.
12. The check was provided to the Plaintiff the following month, and after considerable argument from each party, this Court found in favor of Defendant’s Motion for Final Summary Judgment regarding Exhaustion, granting same.
13. On August 26, 2013, Defendant noticed its hearing on Defendant’s Motion for Attorney’s Fees and Costs and a Motion for Sanctions according to 57.105 against Plaintiff.
14. The following day, Plaintiff notified Defendant of its intentions of filing a Motion for Sanctions pursuant to 57.105 if Defendant did not withdraw its Motions for Attorney’s Fees and Costs within 21 days.
15. Defendant notified Plaintiff of its intentions of proceeding with the Motion for Attorney’s Fees and Costs pursuant to its Proposal for Settlement; but that the Motion pursuant to Florida Statute 57.105 was being withdrawn.
16. Plaintiff sent a subsequent letter to Defendant notifying it of the intent to file a Motion pursuant to 57.105 if Defendant’s Motion for Fees and Costs was not withdrawn. Defendant did not respond and Plaintiff was compelled to file the Motion pursuant to 57.105.
17. Plaintiff filed a Notice of Filing Authority and served same upon Defendant, containing binding case law to support Plaintiff’s contention that Defendant’s Motion for Fees and costs was frivolous.1
18. This Court heard Defendant’s Motion for Fees and Costs on November 18, 2013 and rejected same holding2:
“It is inherently not good faith to do a proposal for settlement without at least minimally alerting through pleadings the opposing side as to the only issue or the actual issue that the other side would need to be aware of, which is exhaustion, to make an informed decision as to whether to accept the proposal settlement or not. “You knew the status of how much was paid out. You knew the status of what was left. You made the decision to exhaust. Everything was proper for you to do that, but for you to now say the proposal was in good faith when you kept that from the plaintiff until after the time expired, I don’t agree, so your motion is denied,”
ANALYSIS
Defendant State Farm’s Motion for Attorney’s Fees and Costs was in bad faith and is frivolous. Defendant’s Motion for Attorney’s Fees against Plaintiff is frivolous in the fact that the issue of exhaustion of benefits was not raised by the Defendant until long after the expiration of the proposal for settlement. The proposal for settlement was raised prior to the Answer being filed; prior to Discovery being responded to; and subsequent to the Motion to Dismiss which was based upon Standing, not exhaustion. “Attorney fees awarded pursuant to the offer of judgment statutes are sanctions. These fees are awarded as sanctions for unreasonable rejections of offers of judgment.” Sarkis v. Allstate Ins. Co., 863 So.2d 210 (Fla. 2003) [28 Fla. L. Weekly S740a]. The Defendant did not exhaust benefits until six months after the Proposal for Settlement was rejected; therefore the exhaustion defense cannot be utilized in determining whether the nominal offer of judgment was made in good faith. Defendant and Defendant’s counsel knew that the Attorney Fee and Cost claim it was making was frivolous, not in good faith, and therefore, it is subject to 57.105 Fees and Costs sanctions.
This Court could not determine what possible basis there could be for Defendant to succeed in obtaining attorney’s fees under these circumstances. The Defendant withheld the most important piece of information from the Plaintiff that would allow it to make a reasonable decision. The benefits exhausted after the proposal for settlement expired. This Court could not see any basis for Defendant’s Motion for Fees and Costs to go forward.
As a consequence, pursuant to Florida Statute 57.105, the Court finds that the Plaintiff’s Motion for Fees and Costs is hereby Granted.
It is Therefore ORDERED AND ADJUDGED THAT:
Defendant is responsible for Plaintiff’s fees and costs from the period of time from when Plaintiff placed Defendant on notice of its intention to see sanctions under 57.105. and an evidentiary hearing will be held to determine same.
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1 A-1 Open MRI, Inc. a/a/o Reinaldo Gonzalez v. United Automobile Insurance Company, 20 Fla. L. Weekly Supp. 288b (17th Jud. Cir. 2012). Pembroke Pines MRI a/a/o Wendy Brigante v. USAA Casualty Insurance Company, 16 Fla. L. Weekly Supp. 864b (17th Jud. Cir. County Court 2009) Monica Barnes v. Pro Imaging, 15 Fla. L. Weekly Supp. 981b, (17th Jud. Cir Appellate 2008); United Medical Center of Boca Raton v. State Farm Mutual, unpublished decision, 11-07738 CONO 73, Precision Diagnostic of Lake Worth, LLC a/a/o Joseph Sallabi v. State Farm Mutual Automobile Insurance Company, 18 Fla. L. Weekly Supp. 692b (17th Jud. Cir. County Court, 2011)
2Transcript of hearing on Defendant’s Motion for Fees and Costs held November 18, 2013, page 11.
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