23 Fla. L. Weekly Supp. 178a
Online Reference: FLWSUPP 2302OUTPInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Where medical provider filed notice of voluntary dismissal 88 days after service of insurer’s section 57.105 safe harbor letter, insurer is entitled to award of attorney’s fees and costs
OUTPATIENT PAIN AND WELLNESS CENTER, INC., As assignee of Jordan Hill Jr., a Minor, by and through Octavia McLendon, Natural Guardian, Plaintiff/Assignor, v. FIRST ACCEPTANCE INSURANCE COMPANY, INC, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 14-CC-025285, Division L. June 10, 2015. Kim Hernandez Vance, Judge. Counsel: Terrance Swartz, Law Office of Nicholas Law Group, PLLC, Tampa, for Plaintiff. Stephen B. Farkas, Dutton Law Group, P.A., Tampa, for Defendant.
AGREED ORDER ON DEFENDANT’S MOTIONFOR SANCTIONS PURSUANT TO F.S. §57.105
UPON AGREEMENT of the parties and their respective counsel, in regards to Defendant’s Motion for Sanctions Pursuant to Florida Statute §57.105, and after being duly advised in the premises, it is ORDERED and ADJUDGED as follows:
BACKGROUND AND FACTS
1. Plaintiff filed this action on or about September 4, 2014. Attached to the Complaint was a pre-suit demand letter, per §627.736(10), wherein it stated the dates of service at-issue were 11/18/13 to 3/25/14.
2. Defendant filed its Answer with Affirmative Defenses on or about November 8, 2014, wherein it was specifically alleged that the insurer did not receive any medical bills for the dates of service at-issue in the demand letter.
3. A review of the docket shows that no Reply to Defendant’s affirmative defenses was ever filed by the Plaintiff.
4. On or about December 17, 2014, Defendant filed its Motion for Final Summary Judgment, based on various grounds, including but not limited to untimeliness and non-receipt of the bills at-issue.
5. Defendant’s Motion for Final Summary Judgment was scheduled to be heard on June 8, 2015.
6. On March 12, 2015, Defendant served the statutorily required safe harbor letter, per Florida Statute §57.105, along with its proposed Motion for Sanctions notifying Plaintiff that the bills at-issue were never received until Plaintiff submitted the pre-suit demand letter that was attached to the Complaint. In the safe harbor letter, Defendant also notified Plaintiff that if said case was not dismissed within twenty-one (21) days, Defendant would pursue the proposed Motion for Sanctions to recover its fees and costs.
7. Defendant filed its Motion for Sanctions Pursuant to Florida Statute §57.105 on or about April 9, 2015; exactly 28 days after service of the safe harbor letter.
8. Defendant also filed an Amended Notice of Hearing on April 9, 2015 to reflect that the Court would also hear argument on Defendant’s Motion for Sanctions Pursuant to Florida Statute §57.105.
9. Plaintiff filed its Notice of Voluntary Dismissal on June 8, 2015; roughly 88 days after service of the safe harbor letter, which is well outside the 21-days afforded by the statute.
FINDINGS AND CONCLUSIONS OF LAW
10. The Defendant is a prevailing party in this litigation, following the Plaintiff’s dismissal of its case. See Boca Airport, Inc., v. Roll-N-Roaster of Boca, Inc, 690 So. 2d 640 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D602a] (For purposes of a prevailing party’s attorney’s fees statute, a voluntary dismissal by the claimant makes the opposing party a “prevailing party” as to the issue of entitlement to fees.).
11. Therefore, in accordance with Boca Airport, Inc., v. Roll-N-Roaster of Boca, Inc, 690 So. 2d 640 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D602a], the Court concludes that the Defendant is a prevailing party, for purposes of a §57.105 Motion and its entitlement to fees, by virtue of the Plaintiff having filed a voluntary dismissal. The agreement of the parties is in accordance with the law.
12. A voluntary dismissal, filed outside the 21-day period, entitles the Defendant to recover its reasonable attorney’s fees and costs. Furthermore, the Defendant is no longer obligated to conclusively show that it would have prevailed had the case been determined on its merits. See Florida Injury East, Inc., v. USAA Cas. Ins. Co., 21 Fla. L. Weekly Supp. 571b (Fla. Orange Cty. Ct. 3/7/14).
13. The situation in the present case is the type of situation contemplated by the statute, wherein a claimant files its dismissal outside of the 21-day period and consequently remains liable for fees and costs under §57.105. See Beaches Open MRI, LLC., v. USAA Cas. Ins. Co., 21 Fla. L. Weekly Supp. 265a (Fla. Duval Cty. Ct. 12/13/13) and Argyle Chiropractic Center, v. United Services Automobile Assoc., 20 Fla. L. Weekly Supp. 1218b (Fla. Duval Cty. Ct. 8/14/13). In both cases, attorney’s fees were awarded to the insurer where Plaintiff/medical provider waited until after the 21-day safe harbor period expired to file its voluntary dismissal. The Court approves of those cases and the agreement of the parties is in accordance with the law
14. The Plaintiff could have filed its Notice of Voluntary Dismissal during the so-called safe harbor period and avoided fees, but it did not. The Notice of Voluntary Dismissal, filed on June 8, 2015, was outside the safe harbor period and consequently cannot protect the Plaintiff from exposure for fees and costs.
ACCORDINGLY, it is ORDERED AND ADJUDGED that:
a) The Court GRANTS the Defendant’s Motion for Sanctions Pursuant to Florida Statute §57.105;
b) Defendant is entitled to recover the reasonable attorney’s fees and costs it has accrued since the filing of this action, on September 4, 2014; and
c) The Court reserves jurisdiction to determine the amount of reasonable attorney’s fees and costs to be awarded to the Defendant, as well as the apportionment (i.e, how much to be paid by the Plaintiff and how much to be paid by Plaintiff’s counsel.
