23 Fla. L. Weekly Supp. 149a
Online Reference: FLWSUPP 2302LEMMInsurance — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Where medical provider knew or should have known that it sued wrong insurer, insurer is entitled to attorney’s fees award under section 57.105 — Insurer is also entitled to award of fees based on valid proposal for settlement
COMPLETE WELLNESS CHIROPRACTIC & REHABILITATION, (A/A/O AMANDA LEMMONS), Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Okaloosa County, Civil Division. Case No. 2014-SC-000776-F. June 15, 2015. Jim Ward, Judge. Counsel: Woodburn S. Wesley, for Plaintiff. David Hwalek, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR ATTORNEYS’FEES AND COSTS (AS TO ENTITLEMENT)
THIS CAUSE having come before this Honorable Court on Defendant’s Motion for Attorneys’ Fees and Costs [on the issue of entitlement] on December 15, 2014, and the Court having heard arguments of both parties’ Counsel for the Defendant, and being otherwise advised in the premises, the Court makes the following findings and conclusions of law:
1. The Defendant did not insure the assignor, that United Services Automobile Association was the entity that issued insurance policy at issue in this lawsuit, and United Services Automobile Association is a separate and distinct legal entity from USAA Casualty Insurance Company.
2. On July 17, 2014, the Defendant served a valid proposal for settlement which was not accepted by the Plaintiff. Additionally, on July l0, 2014, the Defendant also served a 57.105 motion based on the fact that the Plaintiff sued the wrong entity. The Plaintiff did not dismiss this case within the 21 day safe harbor afforded by Fla. Stat. 57.105.
3. Based upon the record evidence presented to this Court [which includes 19 Explanation of Reimbursements that identify the insurer as United Services Automobile Association; a certified copy of the insurance policy which includes the declarations page identifying the insurer as United Services Automobile Association; checks issued for payment for services rendered to Amanda Lemmons that identify the payor as United Services Automobile Association], the Plaintiff and its counsel knew or should have known the that United Services Automobile Association, not the Defendant, was the entity that insured Amanda Lemmons.
4. Regarding the Defendants 57.105 motion, based on the record evidence and the case law provided to this Court, the Court finds that the Plaintiff and its counsel knew or should have known that the filing of this lawsuit 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. The Court further finds that the Defendant’s proposal for settlement is compliant with Fla. Stat. 769.79 and was also made in good faith.
Based upon the arguments of counsel, the above findings and conclusions, it is hereby:
ORDERED AND ADJUDGED that
Defendant’s Motion for Attorneys’ Fees and Costs [on the issue of entitlement] is Granted. Additionally, the Court hereby reserves jurisdiction as to the amount of attorneys’ fees and costs.
