24 Fla. L. Weekly Supp. 712a
Online Reference: FLWSUPP 2409EUCEInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Motion for sanctions pursuant to section 57.105 is granted where insurer knew or should have known that affirmative defense asserting that medical provider failed to furnish demand letter compliant with PIP statute was not supported by material facts or applicable law, yet insurer did not withdraw defense within 21 days of letter advising of provider’s intent to file motion for section 57.105 sanctions
DR. RUBIN THOMPSON, DC, a Florida Corporation (assignee of Euceda, Abdiel) Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-20981 SP 23 (4). September 27, 2016. Jason Emilios Dimitris, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Lara Edelstein, House Counsel for United Automobile Insurance Company, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSANCTIONS PURSUANT TO FLA. STAT. § 57.105
THIS CAUSE came before the Court on September 26, 2016 upon Plaintiff’s Motion for Sanctions pursuant to Fla. Stat. §57.105 (Re: Defendant’s First Defense — Demand Letter) and the Court having heard argument of counsel and being fully advised in the premises, hereby makes the following
FINDINGS OF FACT and CONCLUSIONS OF LAW:
1. On or about February 3, 2011, Plaintiff Dr. Rubin Thompson, D.C. sent a letter to Defendant United Automobile Insurance Company that 1) stated that it was a “demand letter under §627.736(10)”; 2) identified the insured, claim number and the Plaintiff as the medical provider that rendered treatment to the Patient, Abdiel Euceda for dates of service from November 24, 2010 to December 20, 2010; 3) attached a copy of the Assignment of Benefits and an itemized statement specifying the dates of treatment and CPT Codes at issue; and 4) was delivered to the Defendant insurer via certified mail.
2. After Defendant failed to comply with the demand letter, on November 22, 2013, Plaintiff filed its complaint against the Defendant, seeking to recover Personal Injury Protection benefits pursuant to the policy of insurance issued by the Defendant.
3. On November 3, 2014, Defendant filed its motion to amend answer, to assert as an affirmative defense that Plaintiff had failed to furnish the Defendant with a pre suit demand letter that complies with the requirements set forth in §627.736(11)(c), Fla. Stat., for dates of service November 23, 2010 to December 22, 2010.
4. By Agreed Order entered November 18, 2014, the Court granted Defendant’s motion to amend answer, to assert as an affirmative defense that Plaintiff had failed to furnish the Defendant with a pre suit demand letter that complies with the requirements set forth in §627.736(11)(c), Fla. Stat., for dates of service November 23, 2010 to December 22, 2010.
5. On April 16, 2015, Plaintiff sent a letter to Defendant, with an attached §57.105 Motion for Sanctions, advising that Plaintiff would file the §57.105 Motion for Sanctions with the Court in the event that Defendant did not withdraw or appropriately correct the demand letter defense within 21 days.
6. The §57.105 Motion for Sanctions that was attached to the April 16, 2015 letter to Defendant asserts that Plaintiff did mail to Defendant timely and compliant demand letters that covered the dates of service at issue in this case.
7. The §57.105 Motion for Sanctions that was attached to the April 16, 2015 letter to Defendant further asserts that Plaintiff’s demand letter complied with the requirements set forth in §627.736(10), Fla. Stat. as it 1) stated that it was a “demand letter under §627.736(10)”; 2) identified the insured, claim number and the medical provider that rendered the treatment; 3) attached a copy of the assignment and an (itemized statement in the form of an Explanation of Review/Health Insurance Claim Form) specifying the date of treatment and CPT Codes at issue; and 4) was delivered to the insurer via certified mail.
8. Defendant failed to withdraw or appropriately correct the demand letter defense within 21 days of the April 16, 2015 letter.
9. On September 9, 2015, Plaintiff filed with the Court, the §57.105 Motion for Sanctions that had been attached to the April 16, 2015 letter. Later that day, Defendant filed its Notice of Withdrawal of Affirmative Defense as to Demand Letter.
10. Fla. Stat. § 57.105(a) provides, in pertinent part:
(1) Upon . . . motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any . . . defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a . . . defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the . . . defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
(4) A motion by a party seeking sanctions under this section must be served but may not be filed with our presented to the court unless, within 21 days after service of the motion, the challenged . . . defense . . . is not withdrawn or appropriately corrected.
11. Defendant knew or should have known that the demand letter defense was not supported by the material facts necessary to establish the defense, or would not be supported by the application of then-existing law to those material facts.
12. Defendant’s withdrawal of the demand letter defense was not timely, as it was not accomplished within 21 days after service of the April 16, 2015 letter.
WHEREFORE, it is ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Sanctions pursuant to Fla. Stat. §57.105 (Re: Defendant’s First Defense — Demand Letter) is GRANTED.
2. The Court reserves jurisdiction to consider whether to award attorneys’ fees, and if so, in what amount.
