23 Fla. L. Weekly Supp. 628b
Online Reference: FLWSUPP 2306MOORInsurance — Personal injury protection — Where there is no reasonable explanation for insurer’s failure to advise medical provider and court of exhaustion of policy limits until one year after exhaustion, insurer is ordered to pay reasonable attorney’s fees and costs incurred by provider due to its inaction
HALLANDALE OPEN MRI, LLC (a/a/o Deanna Moore), Plaintiff, vs. SECURITY NATIONAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 13-12137 (52). October 26, 2015. Giuseppina Miranda, Judge. Counsel: Andrew B. Davis-Henrichs and Emilio R. Stillo, South Florida Trial Lawyers, LLC, Davie, for Plaintiff.
ORDER GRANTING PLAINTIFF’SMOTION FOR SANCTIONS
THIS CAUSE having come before the Court on July 20, 2015 on Plaintiff’s Motion for Sanctions, and the Court having reviewed the Plaintiff’s Motion, the Court file, having heard argument from counsel, and having been otherwise fully advised in the premises, finds as follows:
1. The Plaintiff, an MRI provider, filed suit on July 9, 2013 for outstanding bills and alleged that Defendant failed to pay 80% of the reasonable amount for an MRI scan performed on the Defendant’s insured.
2. On or about September 4, 2013, the Defendant exhausted the personal injury protection benefits under the insured’s policy of insurance.
3. On October 17, 2013, the Defendant filed its Answer and Affirmative Defenses. The responsive pleading made no mention of the exhaustion.
4. On December 31, 2013, in response to Plaintiff’s First Request for Admissions, the Defendant admitted that “benefits being exhausted is not a defense to this claim.”
5. Nearly one year later, on October 3, 2014, the Defendant filed its Motion for Leave to Amend Answer and Affirmative Defenses, proposing to include an Exhaustion of Benefits Affirmative Defense. The Motion was set for hearing on December 15, 2014 at 1:30 p.m., however, defense counsel arrived approximately fifteen minutes late and the Court had already excused Plaintiff’s counsel after waiting approximately ten minutes for defense counsel. The motion was never reset for hearing.
6. On December 15, 2014, for the first time, the Defendant furnished a PIP Log to Plaintiff illustrating that benefits had been exhausted since September 4, 2013.
7. Subsequently, the Plaintiff sought sanctions against the Defendant for failing to raise this defense and providing a PIP Log in a timely fashion.
8. On July 20, 2015, at the hearing on Plaintiff’s Motion for Sanctions, the Defendant’s counsel advised that they were unaware of the exhaustion prior to filing the Motion for Leave to Amend Answer and Affirmative Defenses on October 3, 2014. The Defendant at the hearing was unable to provide any reasonable explanation for not advising of the exhaustion or providing a copy of the PIP Log in a timely fashion.
9. This Court finds that there was no reasonable explanation for the Defendant’s failure to advise the Plaintiff and the Court of the exhaustion in a timely fashion. The Defendant’s failure to inform the Plaintiff and the Court of the exhaustion in a timely fashion caused the Plaintiff to unnecessarily incur fees and costs. Barnes v. Pro Imaging, Inc, 15 Fla. L. Weekly Supp. 981b (Fla. 17th Cir. Appellate 2008).
10. This Court is aware of its inherent authority to impose sanctions, even in the absence of statutory authority, and this imposition should be done sparingly and cautiously. See Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002) [27 Fla. L. Weekly S357b]; See also Koch v. Koch, 47 So.3d 320 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2091a]. The Defendant caused an unnecessary waste of time to the Plaintiff and this Court. The Defendant knew or should have known about the exhaustion in September 2013 or sometime soon after. There was no reasonable argument provided by Defendant’s counsel to excuse the Defendant from timely advising the Plaintiff of the exhaustion.
It is therefore, ORDERED AND ADJUDGED that Plaintiff’s Motion is hereby GRANTED. The Defendant shall pay the reasonable fees and costs incurred by the Plaintiff due to the Defendant’s inaction1. The parties shall schedule an evidentiary fee hearing to determine the amount of the sanction.
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1See Injury Treatment Cntr of Coral Springs, Inc. v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 700c (Fla. Broward County, Cnty. Ct. 2014)(Dishowitz, J.); A-1 Open MRI, Inc. v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 288b (Fla. Broward County, Cnty. Ct. 2012)(Schiff, J.); Madrid LLC v. State Farm Fire and Cas. Co., Case No.: 11-11432 COCE 56, Order on Case Management Conference (Fla. Broward County, Cnty. Ct. March 7th 2014)(Pratt, J.)(unpublished order); Rivera-Morales M.D. v. State Farm Mut. Ins. Co., 22 Fla. L. Weekly Supp. 271a (Fla. Miami-Dade County, Cnty. Ct. 2013)(Gonzalez-Paulson, J.).
