24 Fla. L. Weekly Supp. 992a
Online Reference: FLWSUPP 2411CAPOInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Where medical provider filed claim and suit for X-rays not actually rendered and continued to prosecute case for more than 21 days after being put on notice that insurer intended to seek sanctions should provider continue prosecution, motion for sanctions is granted
B&A DIAGNOSTIC, INC. a/a/o Roberto Capote, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-13086 SP-25 (1). February 7, 2017. Jason Emilios Dimitris, Judge. Counsel: Annie Mur, Mur Law Group, for Plaintiff. Maury L. Udell, Beighley, Myrick & Udell, PA, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SANCTIONS PURSUANT TO FLORIDASTATUTE § 57.105 AGAINST PLAINTIFF, FELIPEAGUILAR, AND PLAINTIFF’S COUNSEL
THIS CAUSE having come before the Court, and after hearing argument of counsel, and reviewing the entire record and all applicable law, it is hereby
ORDERED AND ADJUDGED as follows:
1. This is a suit for Personal Injury Protection (“PIP”) benefits stemming from an automobile crash that allegedly occurred on or about January 17, 2010, and involved Roberto Capote (“Capote”).
2. Progressive received bills from Plaintiff, B&A Diagnostic, Inc., for a number of X-ray studies which were allegedly performed on Capote as a result of said crash.
3. Plaintiff billed Progressive for CPT Code 72052, which refers to X-rays of the complete cervical spine, including oblique and flexion and/or extension studies, but submitted X-ray reports which indicate that only three views of the cervical spine were taken (AP, Open Mouth and Lateral), which would be CPT Code 72040, and which would be billed at a lower rate.
4. Pursuant to Florida Statute § 627.736(5)(b)(1)(c), an insurer is not required to pay a claim or charges to any person who knowingly submits a false or misleading statement relating to the claim or charges.
5. “The [PIP] statute relieves both the insurer and the insured from paying the claims of ‘any person who knowingly submits a false or misleading statement relating to the claim or charges.’ ” Chiropractic One, Inc. v. State Farm Mutual Automobile, 92 So.3d 871, 874 (Fla. 5th 2012) [37 Fla. L. Weekly D1565a].
6. The court in Chiropractic One, Inc. went on to address the meaning of “claims” and “charges,” and stated that it was only logical to conclude that the Legislature used both terms to ensure that not only specific offensive “charges” were invalidated, but rather the entire “claim,” or collective of charges as well. Id., at 874.
7. On January 7, 2016, Defendant served Plaintiff via its attorney, Munir D. Barakat, Esquire, as well as Plaintiff’s owner, Felipe Aguilar, with its Motion for Sanctions Pursuant to Florida Statute § 57.105 Against Plaintiff, Plaintiff’s Owner, Felipe Aguilar, and Plaintiff’s Counsel, therein advising of the false or misleading statement and its intention to seek sanctions should Plaintiff fail to dismiss the case, with prejudice, within twenty-one days.
8. Although unnamed in the pleadings, Felipe Aguilar is still a party under Florida law and subject to sanctions. He was the owner of Plaintiff clinic, was the one responsible for deciding whether or not to initiate litigation to recover money he believes Plaintiff is owed by Progressive, and was the one to retain counsel on behalf of Plaintiff.
9. A “party” “is defined under Florida law as any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.” Abu-Ghazaleah v. Chaul, 36 So.3d 691, 694 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2496a] citing Visoly v. Security Pac. Credit Corp., 768 So.2d 482, 489 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2003a].”
10. “Parties include, not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing towards the expense thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of the proceedings . . .” Id., citing Thueller v. Hershey, 89 F. 575 (C.C.N.D.Cal. 1898); see also Visoly, 768 So.2d at 489.
11. On February 17, 2016, Plaintiff filed its Notice of Withdrawal of CPT code 72052, attempting to withdraw the offensive charge but maintain suit on the remaining charges.
12. Plaintiff failed to dismiss the case within twenty-one days, and on February 25, 2016, Defendant filed its Motion with the Court.
13. On May 13, 2016, Defendant filed its Motion for Final Summary Judgment.
14. On July 25, 2016, Defendant noticed its Motion for Final Summary Judgment to occur on November 16, 2016.
15. Finally, on August 30, 2016, Plaintiff dismissed its suit, without prejudice.
16. On September 20, 2016, Plaintiff’s counsel, Munir Barakat moved to withdraw from the case as counsel of record.
17. The record clearly establishes that Plaintiff knowingly submitted false or misleading statements with regarding to CPT code 72052, and even after being put on notice that Defendant intended to seek sanctions should Plaintiff continue prosecuting its case, failed to do so within twenty-one days.
18. Plaintiff refused to dismiss, and even attempted to “withdraw” the offensive charge, for over seventeen months after being put on notice, until finally dismissing without prejudice on the eve of summary judgment. Plaintiff, Felipe Aguilar, and Plaintiff’s counsel Munir Barakat, Esq. were all on notice that Plaintiff billed Defendant for services not actually even rendered to Roberto Capote.
19. The Court finds that Plaintiff, Mr. Aguilar, and its counsel, Munir Barakat, Esq., knew or should have known that Plaintiff’s claim was not supported by the material facts necessary to establish the claim, or would not be supported by existing laws when applied to those material facts. Defendant’s Motion for Sanctions Pursuant to Fla. Stat. §57.105 is GRANTED.
20. Defendant is entitled to its attorney’s fees and costs as sanctions against Plaintiff and its counsel at the time of receipt of the 57.105 motion, to be paid in equal parts, 50% by Munir Barakat, Esq. and 50% by Plaintiff B&A Diagnostic, Inc. and Felipe Aguilar.
21. The Court shall determine the amount of reasonable attorney’s fees and costs at a separate evidentiary hearing with notice to all interested persons.
