23 Fla. L. Weekly Supp. 1048a
Online Reference: FLWSUPP 2310MORIInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Sanctions against insurer are appropriate where insurer knew or should have known that affirmative defenses of standing and laches were not supported by material facts when it initially presented defenses or, at latest, when it received medical provider’s motion for sanctions and safe harbor letter, yet insurer continued to litigate defenses until it waived them
FLORIDA HOSPITAL MEDICAL CENTER, as assignee of Tatiana Morillo, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015 20057 CONS 8. August 14, 2015. Shirley A. Green, Judge. Counsel: David B. Alexander, Bradford Cederberg, P.A., Orlando, for Plaintiff. Justin L. Seekamp, Cole, Scott & Kissane, P.A., Orlando, for Defendant.
ORDER ON PLAINTIFF’S MOTIONS FORSANCTIONS ON STANDING AND LACHESPURSUANT TO FLA. STAT. §57.105
THIS CAUSE having come before the Court on Plaintiff’s Motion for Sanctions on Standing Pursuant to Fla. Stat. 57.105 and the Court having heard arguments of counsel on July 28, 2015, and being otherwise advised in the Premises, it is hereby:
ORDERED AND ADJUDGED that:
1. On March 19, 2015, Defendant filed its Answer and Affirmative Defenses, setting forth three alleged affirmative defenses:
FIRST AFFIRMATIVE DEFENSE
Defective Assignment of Benefits
There is no valid assignment of benefits and, therefore, the Plaintiff has no standing to bring or maintain the above-styled lawsuit.
SECOND AFFIRMATIVE DEFENSE
Laches
Plaintiff allegedly provided service to the Insured, TATIANA MORILLO, on November 21, 2010. Defendant made payment to Plaintiff for the bill submitted for treatment on February 16, 2011. Plaintiff did not file suit for alleged improper payments by Defendant to Plaintiff until February 9, 2015. The Plaintiff should be prevented from seeking compensation for services allegedly rendered more than four years prior to the initiation of litigation against Defendant as it would be prejudicial to Defendant as, the lapse in time between the last payment and initiation of this suit is unreasonable.
2. The Assignment of Benefits at issue in favor of Plaintiff, Florida Hospital Medical Center, reads in pertinent part:
“I hereby irrevocably assign and transfer to the Hospital, Physicians, Care Providers, and/or their respective assignees, all right title and interest in all benefits, liens, damages, indemnity, reinsurance or other monies payable for Services rendered, including but not limited to: Income Security Act (“ERISA”) benefits or coverage; PIP: uninsured/underinsured motorist; auto or homeowner insurance; and in all causes of action against any party or entity that may be responsible for payment of benefits or monies regardless of whether or not I ultimately settle my claim with a non-admission of liability provision. . .
I hereby appoint the hospital as my Attorney-In-Fact under circumstances permitted by law (and to the extent not prohibited by an applicable provider contract) to on my behalf execute all documents and take all actions deemed necessary by the Hospital to receive its payment . . . of such Program proceeds, Insurance Plan proceeds and/or all other benefits.”
3. On June 2, 2015, Plaintiff served Defendant with Plaintiff’s Motion for Sanctions on Standing Pursuant to Fla. Stat. §57.105 and twenty-one (21) day safe-harbor letter and requested that Defendant withdraw its Affirmative Defense of Standing within twenty-one (21) days from the date of said safe-harbor letter.
4. Defendant failed to withdraw its Affirmative Defense of Standing within the safe-harbor period and on June 24, 2015 Plaintiff filed its Motion for Sanctions with the Court. Therefore, Plaintiff’s Motion for Sanctions on Standing Pursuant to Fla. Stat. §57.105 is properly before the Court for consideration.
5. On June 5, 2015, Plaintiff served Defendant with Plaintiff’s Motion for Sanctions on Laches Pursuant to Fla. Stat. §57.105 and twenty-one (21) day safe-harbor letter and requested that Defendant withdraw its Affirmative Defense of Laches within twenty-one (21) days from the date of said safe-harbor letter.
6. Defendant failed to withdraw its Affirmative Defense of Laches within the safe-harbor period and on June 29, 2015 Plaintiff filed Plaintiff’s Motion for Sanctions on Laches Pursuant to Fla. Stat. §57.105 with the Court. Therefore, Plaintiff’s Motion for Sanctions on Laches Pursuant to Fla. Stat. §57.105 is properly before the Court for consideration.
7. On July 23, 2015, Defendant filed its Notice of Filing Defendant’s Stipulation of Facts which states in paragraph four (4.) that “State Farm waives the remaining affirmative defenses in its last Answer and Affirmative Defenses.” Via this statement, Defendant waived its Standing and Laches defenses in this matter.
8. On July 27, 2015, Defendant filed its “Amended Defendant’s Notice of Voluntary Withdrawal With Prejudice of Affirmative Defenses” which “expressly states that any and all affirmative defenses are withdrawn with prejudice.”
9. In the present matter, the Court finds, pursuant to Fla. Stat. §57.105(1)(a), that when the defenses of Standing and Laches were initially presented to this Court via Defendant’s filing of its Answer and Affirmative Defenses, Defendant knew or should have known that said defenses were not supported by the material facts necessary to establish the defenses. Even if this was not the case, once Defendant received Plaintiff’s Motions for Sanctions and safe-harbor letters, Defendant knew or should have known that said defenses were not supported by the material facts necessary to establish the defenses, yet Defendant continued to litigate said Standing and Laches until they were waived on July 23, 2015. Sanctions against Defendant, STATE FARM, and in favor of FLORIDA HOSPITAL MEDICAL CENTER, as assignee of ANTHONY MEHLICH, based upon Defendant’s violation of Fla. Stat. §57.105(1)(a) are appropriate in this matter.
10. Plaintiff’s Motions for Sanctions on Laches and Standing pursuant to Fla. Stat. §57.105 is hereby GRANTED. The Court finds that Plaintiff, FLORIDA HOSPITAL MEDICAL CENTER, as assignee of CYNTHIA OWENS, is entitled to its reasonable attorneys’ fees, as sanctions, against Defendant, STATE FARM, pursuant to Fla. Stat. §57.105(1)(a) and Fla. Stat. §57.105(2). The Court hereby reserves ruling as to the amount of the sanctions. Said sanctions shall be paid by Defendant, STATE FARM.
11. If Plaintiff prevails on its Motion for Final Judgment, Plaintiff will not recover attorneys’ fees beyond the amount in would otherwise receive as the prevailing party.
12. If the Plaintiff does not prevail, Plaintiff would still be entitled to the attorney fees and other costs associated with the Motion for Sanctions.
13. Fla. Stat. 57.105 allows the court to require that both Defendant and Defendant’s c counsel share the sanction cost; however in the instant case, the court orders the Defendant, State Farm to pay the entire amount.
