23 Fla. L. Weekly Supp. 604b
Online Reference: FLWSUPP 2306VALDNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 189aInsurance — Pleadings — Sham — Insurer’s third-party complaint against medical provider pleading indemnity, unjust enrichment, equitable estoppel, and detrimental reliance is stricken as sham pleading where allegations are inherently false and were clearly known to be false based on plain and conceded facts — Court retains jurisdiction to award sanctions for frivolous litigation
GABLES INSURANCE RECOVERY, INC., a/a/o KRISTINE VALDES, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant, v. ALL X RAY DIAGNOSTIC SERVICES, CORP., Third Party Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division, Coral Gables Branch Court. Case No. 12-18756 SP 25, Section 2. October 2, 2015. Don S. Cohn, Judge. Counsel: Adriana De Armas, Gables Insurance Recovery, for Plaintiff. Marcella Amador-Walled, Law Office of Camille D. Riviere, for Defendant. Matthew E. Ladd, Law Office of Matthew E. Ladd, Coral Gables, for Third Party Defendant.
[Motion for rehearing DENIED. FLWSUPP 2702VALD]
ORDER GRANTING THIRD-PARTY DEFENDANTALL X-RAY’S AMENDED MOTION TO STRIKESHAM PLEADINGS AND ENTER SUMMARYJUDGMENT PURSUANT TO R. 1.150
IT IS HEREBY ORDERED after a two-hour special set evidentiary hearing on Aug. 19, 2015 that Third-Party-Defendant, All X-Ray’s Amended Motion to Strike Sham Pleadings and Enter Summary Judgment pursuant to Fla. R. Civ. P. 1.150 and Meadows v. Edwards, 82 So. 2d 733, (1955), it is hereby GRANTED for the reasons stated on the record and as set forth in All X-Ray’s Motion.
It is further found;
1. The Motion verified by counsel was properly filed.
2. Progressive did not present any facts outside of the total record evidence in response to the issues raised in All X-Ray’s Motion.
The allegations and counts filed by Progressive against All X-Ray are determined to be inherently false and were clearly known to be false based on the plain and conceded facts set forth in the record and cited in All X-Ray’s motion. See F.V. Construction Corp., and Fraces Valera v. Community Bank of Florida, 106 So. 3d, 1012 (2013) [38 Fla. L. Weekly D400a].
Progressive’s Third Party Complaint against All X-Ray is hereby stricken and summary judgment is entered in favor of All X-Ray Diagnostic Services, Inc. on each of the four counts plead.
This court retains jurisdiction for litigation pursuant to All X-Ray’s Motion for Sanctions and Attorney’s fees pursuant to Fla. Stat. 57.105 and their proposal for settlement.
STANDARD OF REVIEW
Rule 1.150 permits the striking of a pleading that is “palpably or inherently false-in-fact” (or any part of a pleading) even if the pleading alleges a technically valid cause of action or defense. See Decker v. County of Volusia, 698 So.2d 650, 651-52, (5th DCA, 1997) [22 Fla. L. Weekly D2129a]. The pleading must be both 1) palpably or inherently false and 2) known to the party interposing it to be untrue. See Pacheco v. Wasserman, 701 So. 2d 104, 106 (3rd DCA, 1997) [22 Fla. L. Weekly D2311a] citing Rhea v. Hackney, 157 So. 190, 193 (1934). The court is empowered to determine as a matter of judicial cognizance, whether there is any real triable issue of fact presented by the pleading by determining whether an ostensible issue is in reality fictitious, a mere pretense, and sham. See Guaranty Life Ins. Co. v. Hall Bros. Press, Inc., 189 So. 243, 246 (1939).
ISSUES PRESENTED
Progressive seeks four counts for recovery against All X-Ray. An evidentiary hearing was held on Aug. 19, 2015 in which no evidence was presented or cited by Progressive to refute the record evidence cited by All X-Ray in support of its motion to strike Progressive’s pleadings as a sham. Specifically, All X-Ray asserted and it is hereby found that:
1) Indemnity requires a vicarious relationship between Progressive and All X-Ray which does not exist. A fact for which Progressive was well aware at the time of filing the action.
Progressive failed to present any evidence or cite any record evidence to refute the claim.
2) Unjust Enrichment is sought even though a review of the record evidence reveals the existence of an express contract which precludes the equitable relief sought.
Again, Progressive failed to cite any record evidence or otherwise present evidence to contest that an express contract did not exist as alleged and cited in All X-Ray’s motion.
3) The remaining two actions pled, Equitable Estoppel and Detrimental Reliance, both seek to prohibit All X-Ray from asserting that it did not have standing to pursue the claim. Such a matter has been resolved by this court’s Sept. 12, 2014 order indicating that the sole party with standing was Gables Insurance Recovery.
Again, no such evidence was presented or cited in the record evidence to refute All X-Ray’s assertion that Progressive’s pursuit of the claims were unsubstantiated and false-in-fact.
4) Finally, Progressive seeks recovery in the form of damages to include “costs, attorneys fees, and other relief” in each of the four counts plead. Progressive was aware that such relief is without any legal basis as no contract or statutory provision exists to warrant the relief sought. Pursuit of such a recovery warrants striking the request for the relief requested as false-in-fact and that Progressive knew it was without any basis at the time the relief was pled.
THEREFORE, each of the four claims pursued by Progressive are hereby stricken as a sham and summary judgment is hereby entered in favor of All X-Ray due to Progressive failing to present any evidence to refute the evidence cited by All X-Ray in support of its Motion. Furthermore, Progressive failed to present any evidence or cite to the total record evidence to refute All X-Ray’s contention that Progressive knew that no such required factual basis existed in support of its claims at the time the claims were plead.
Jurisdiction of this court is retained for litigation pursuant to §57.105 for the award of sanctions against Progressive and its counsel for the frivolous litigation described herein.
