22 Fla. L. Weekly Supp. 961b
Online Reference: FLWSUPP 2208THOMInsurance — Attorney’s fees — Sanction for failure to notify medical provider of pre-suit exhaustion of benefits and assert exhaustion as affirmative defense
PRECISION DIAGNOSTIC OF LAKE WORTH, LLC, (Frist Thomas), Plaintiff, vs. INFINITY AUTO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-21187 COCE (51). June 30, 2014. Honorable Martin R. Dishowitz, Judge. Counsel: Abdul-Sumi Dalal, Lander Dalal & Associates, P.L., Fort Lauderdale, for Plaintiff. Alina Palacios-Hart, Law Offices of Deborah P. Izquierdo, Miami, for Defendant.ORDER
THIS CAUSE came to be considered on:
PLAINTIFF’S MOTION FOR SANCTIONS, and for ATTORNEY’S FEES AND COSTS. IT IS HEREBY ORDERED AND ADJUDGED:
1. Plaintiff’s Motion is hereby GRANTED. On October 17, 2012 suit was filed in the case at bar. Service was effectuated on the Defendant on November 1, 2012. On January 7, 2013 the Defendant served its Answer and Affirmative Defenses, listing as its sole affirmative defense of payment in full. At the time of Defendant’s Answer and Affirmative Defense benefits of $10,000.00 had been exhausted, more specifically benefits were exhausted pre-suit. This Court finds that exhaustion should have been pled as an affirmative defense. On May 9, 2013, for the first time, Defendant notified Plaintiff of the exhaustion of benefits. The Defendant’s conduct in failing to promptly notify the Plaintiff of the exhaustion caused Plaintiff to spend attorney time an costs for which it would otherwise not have incurred had the issue of exhaustion been conveyed. The Court has inherent authority to award reasonable attorney’s fees when the dilatory conduct of a party caused precipitates the adverse party from prosecuting a claim that it otherwise would have dismissed. See Barnes v. Pro Imaging, 15 Fla. L. Weekly Supp. 981b (Fla. 17th Cir.Court 2008). The Court is aware that sanctions should be imposed sparingly. See Koch v. Koch, 47 So. 3d 320 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2091a]. However, the Court finds the unreasonable conduct of the Defendant caused an unnecessary waste of time.
Accordingly, Plaintiff is awarded attorney time and costs from the date of the filing through May 9, 2013. Within 30 days Plaintiff shall serve its time sheets for the relevant time period. The Court will hold a separate hearing as the reasonableness of Plaintiff’s time and hourly rate sought.
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