22 Fla. L. Weekly Supp. 749c
Online Reference: FLWSUPP 2206WESTInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Where by end of 21-day safe harbor period medical provider could have determined that insurer was entitled to reimburse bills in accordance with statutory fee schedule by reference to policy language provided by insurer and that provider had received check for full amount due, motion for attorney’s fees is granted — Motion for attorney’s fees filed after expiration of safe harbor period but before provider filed voluntary dismissal was timely filed — Section 57.105 does not require that motion for attorney’s fees be filed immediately after expiration of safe harbor period
WEST HOLLYWOOD PAIN & REHABILITATION, INC., Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-856 COCE (53). December 4, 2014. Robert W. Lee, Judge. Counsel: Joseph R. Dawson, Fort Lauderdale, for Plaintiff. Paul M. Gabe, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES
THIS CAUSE came before the Court on December 1, 2014 for hearing of the Defendant’s Motion for Entitlement to Costs1 and Attorney’s Fees, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
On January 14, 2013, the Plaintiff filed its Complaint in this PIP case seeking unpaid benefits. In this case, the Defendant paid the claim, but at the reduced 200% of Medicare rate. On October 17, 2013, the Defendant served its Florida Statute §57.105 “Notice to Seek Attorney’s Fees.” The Defendant noted that the insurance policy at issue in this case permitted Star Casualty to pay at the rate of 200% of Medicare. In its Notice, the Defendant quoted the language of the policy. Additionally, the Notice stated that the attorney has “attached a copy of the applicable policy and declarations page for your reference.” In response, the Plaintiff sent a letter asserting that the Notice to Seek Attorney’s Fees was not filed in good faith because the Defendant had not yet “fully compl[ied] with Plaintiff’s discovery requests” nor filed an “Answer to the Complaint.” Importantly, the letter does not state that the copy of the policy claimed to be attached to the Notice to Seek Attorney’s Fees was not attached, that the Plaintiff has otherwise been unable to obtain a copy of the policy; or that the Defendant failed to pay interest, penalties, and postage due even if the benefits had been paid at the correct rate.
The parties thereafter continued to litigate the case. On August 18, 2014, the Defendant filed its Motion for Entitlement to Costs and Attorney’s Fees based on the Plaintiff’s failure to dismiss the case.
The case proceeded to mediation, held almost a year after the Notice to Seek Attorney’s Fees, at which the Defendant provided a copy of the check which demonstrated that the Plaintiff had been fully paid for all interest, penalties and postage back in October 2012 when the Plaintiff accepted and cashed the check at issue. Thereafter, on October 16, 2014, the Defendant filed its Voluntary Dismissal.
The Plaintiff’s position is that the Defendant was required to answer the complaint and provide full responses to discovery before the Defendant could propound a good faith Notice to Seek Attorney’s Fees. The Plaintiff was unable to provide any legal authority for this position, and the Court was unable to find any legal authority when conducting its own search.
The Plaintiff’s next argument is that the Defendant did not timely provide Plaintiff a copy of the insurance policy, and that it did not timely provide proof that it had paid all the claim, including interest, penalties and postage.
The dispositive issues in this case are fairly simple. First, did the Defendant’s insurance policy contain the appropriate “200% of Medicare” language? This was easily determined by a review of the language of the policy. The Defendant quoted the language of the policy and provided the Plaintiff a copy.2 No other discovery was necessary for this exercise. Second, did the Defendant pay all amounts due, including interest, penalties, and postage?3 The Plaintiff claims it did not know this until it received a copy of the cashed check at the mediation. The problem with this point is that the Plaintiff itself cashed the check in 2012 — it clearly should have known that it did so. The Plaintiff claims that through a bookkeeping error, it could not have found its mistake, and therefore it was incumbent on the Defendant to provide the proof that the Plaintiff had cashed the check. The Court will not lay the burden of investigation on the Defendant’s feet, particularly when the evidence suggested little if any effort on part of the Plaintiff to look into this issue.
Next, the Plaintiff claims that the Defendant did not timely file its Motion for Attorney’s Fees. Under the statute, the Motion cannot be filed until after the 21-day safe harbor period has passed. Fla. Stat. §57.105(4). There is nothing in the statute that gives an outside deadline. By waiting to file its Motion, the Defendant was actually working to the Plaintiff’s advantage, because the Plaintiff would have been able to file a dismissal at any time before the Motion was filed without being on the hook for fees. When the Defendant, however, finally filed its Motion before the Plaintiff filed its dismissal, the Defendant preserved its right to seek fees. See Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., 143 So.3d 1182, 1183 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1704b] (motion seeking fees under §57.105 must be filed before case is dismissed or right to fees is lost).
Based on the facts of this case, the Court finds that the Plaintiff should have known that this claim “was not supported by the material facts necessary to support the claim,” or “would not be supported by the application of then-existing law to those material facts” as of November 12, 2013, the end of the 21-day safe harbor period. Fla. Stat. §57.105(1)(a) & (b). See Florida Injury East, Inc. v. USAA Cas. Ins. Co., 21 Fla. L. Weekly Supp. 571b (Orange Cty. Ct. 2014). In the Court’s view, this time frame provided sufficient time for the Plaintiff to review the language of the insurance policy, as well as investigate whether the Plaintiff had received and cashed the check for interest, penalties, and postage. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Entitlement to Attorney’s Fees is GRANTED. The Defendant may request that a hearing be set to determine the amount of fees upon submitting a breakdown of the fees sought, by description of work, provider, time expended, and hourly rate sought.
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1At the hearing, Plaintiff stipulated to Defendant’s entitlement to costs.
2As noted, the Defendant specifically pointed out that it was providing a copy of the policy along with its Notice to Seek Attorney’s Fees. In response, the Plaintiff made several other claims about the Notice, but did not specifically mention anything at all about not having a copy of the insurance policy.
3As the Defendant pointed out, a request for these precise items was not included in the Plaintiff’s Statement of Claim, nor in Plaintiff’s response to the Notice to Seek Attorney’s Fees.
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