22 Fla. L. Weekly Supp. 713a
Online Reference: FLWSUPP 2206TAMPInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Medical provider that refused to withdraw claim after acknowledging that claim was paid in full and policy limits were exhausted is liable for attorney’s fees under section 57.105
TAMPA BAY ORTHOPAEDIC & SPINE, LLC (A/A/O JUSTIN PARKER), Plaintiff, vs. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 13-5782-SC-SOUTH. September 23, 2014. Honorable Walt Fullerton, Judge.
ORDER GRANTING DEFENDANT’S MOTIONFOR ATTORNEY’S FEES AND COSTS
THIS CAUSE came upon to be heard on Defendant’s Motion for Attorney’s Fees and Costs, on August 25, 2014, following this Court’s Order granting Defendant Final Summary Judgment, and after reviewing the record and all memoranda and submitted case law, and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED as follows:FACTUAL BACKGROUND
1. Plaintiff served this PIP case on Defendant on October 17, 2013.
2. Defendant noticed Plaintiff in November 2013 that Defendant would file 57.105 motions seeking attorney’s fees if Plaintiff did not withdraw the suit within 21 days because benefits were exhausted, and Plaintiff had been paid in full.
3. Plaintiff similarly noticed Defendant that Plaintiff intended to seek attorney’s fees. Plaintiff acknowledged that Defendant fully paid the claim paid in full, and did noy contest that the benefits had been exhausted, but refused to withdraw the claims because Plaintiff alleged Defendant failed to timely notice Plaintiff of the exhaustion of benefits.
4. Defendant filed the aforementioned Motions for 57.105 Sanctions after the expiration of the twenty one (21) day safe harbor.
5. Defendant filed Motions for Summary Judgment on the issues of Paid in Full, and Exhaustion of Benefits.
6. Plaintiff cross filed on the issue of the alleged failure to notice Plaintiff of the exhaustion of benefits.
7. This Court heard Plaintiff on this matter, and denied the sought relief.
8. This Court also heard Defendant on the Motion for Summary Judgment on Paid in Full, and granted the Motion.
9. Similarly, this Court heard Defendant’s Motion for Summary Judgment on Exhaustion of Benefits, and granted said Motion.
10. Defendant filed Motion for Attorney’s Fees and Costs on March 12, 2014.
11. Defendant requested award of attorney’s fees under Fla. Stat. 57.105, and costs pursuant to Fla. R. Civ. P. 1.525, and Fla. Stat. 57.041.
12. This Court heard said Motion for Attorney’s Fees and Costs on August 25, 2014.
13. The Court heard no opposition, despite the Court placing a call to Plaintiff’s attorney.
14. The Court also confirmed that Plaintiff was noticed of the Hearing.
15. In the absence of argument to the contrary, and after reviewing Defendant’s submission, this Court granted said Motion against both the Plaintiff, and the Plaintiff’s attorney.
Based upon the arguments of counsel, the evidence filed with this Court it is hereby:
ORDERED AND ADJUDGED that this Court specifically finds that Plaintiff and Plaintiff’s attorneys knew or should have known that this claim, when initially presented, was not supported by the material facts necessary to establish the claim and would not be supported by the application of then existing law to the material facts. It is further
ORDERED AND ADJUDGED that the USAA has met its burden under Fla. Stat. 57.105 with regard to the Plaintiff and Plaintiff’s attorneys and is entitled to reasonable attorney’s fees. It is further
ORDERED AND ADJUDED that USAA is entitled to costs under Fla. R. Civ. P. 1.525, and Fla. Stat. 57.041. It is further
ORDERED AND ADJUDGED that this Court retains jurisdiction to determine the amount of attorneys’ fees and costs.
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