24 Fla. L. Weekly Supp. 347a
Online Reference: FLWSUPP 2405MARSInsurance — Personal injury protection — Settlement agreement — Enforcement — Where medical provider brought suit for single date of service and voluntarily dismissed suit with prejudice as result of settlement, provider’s subsequent suit for additional dates of service related to same accident is dismissed with prejudice
JAMES D. SHORTT, M.D., P.A. a/a/o Leila Marshall, Plaintiff, v. HARTFORD UNDERWRITERS INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2014 SC 004296 NC. May 23, 2016. Judith M. Goldman, Judge. Joshua M. Paquette, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Robert M. Pickett, Law offices of Jason L. Weissman, Hollywood, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TOENFORCE SETTLEMENT AGREEMENT & TO DISMISS
THIS CAUSE, having come before this Honorable Court on October 5, 2015, for Defendant, HARTFORD UNDERWRITERS INSURANCE COMPANY’s, Motion to Enforce Settlement Agreement, and the Court being fully advised in the premises makes the following findings:
On or about January 9, 2013, Plaintiff, JAMES D. SHORTT, M.D., P.A., filed its first breach of contract suit (“First Complaint”) against Defendant regarding personal injury protection (“PIP”) benefits for treatment it provided to Leila Marshall (“Claimant”) as a result of her involvement in a motor vehicle incident occurring on 12/14/11. In paragraph #7 of the First Complaint, Plaintiff indicates the dates of service at issue were “from 8/24/2012.”
On April 3, 2013, Plaintiff filed its notice of voluntary dismissal with prejudice as a result of the parties’ settlement of the matter. Plaintiff did not submit a pre-suit demand letter to include additional dates of service (before settlement). Plaintiff did not seek to amend its First Complaint. Plaintiff cashed the settlement checks.
On August 14, 2014, Plaintiff filed the present suit (“Second Complaint”) against Defendant, and in paragraph #7, indicated the dates of service at issue were, “from 8/24/2012 through 04/18/2013,” and related to the same motor vehicle incident occurring on 12/14/11.
Plaintiff argued the instant case, Second Complaint, is proper because the parties’ settlement agreement was solely as to date of service 8/24/15. And there was “no meeting of minds” as to settlement of the additional dates of service.
Defendant moved to dismiss the Second Complaint, pursuant to Fla. Stat. § 627.736(15):
ALL CLAIMS BROUGHT IN A SINGLE ACTION. — In any civil action to recover personal injury protection benefits brought by a claimant pursuant to this section against an insurer, all claims related to the same health care provider for the same injured person shall be brought in one action, unless good cause is show why such claims should be brought separately. If the court determines that a civil action is filed for a claim that should have been brought in a prior civil action, the court may not award attorney’s fees to the claimant.
Defendant argued Plaintiff had failed to show “good cause” to separate the claim when Plaintiff had full opportunity to amend its First Complaint and properly include any additional dates of service. See Active Chiropractic Wellness Ctr. (a/a/o Koller, Carla) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 341b (Fla. Duval Cty. Ct. 2015).
Additionally, Defendant argued Plaintiff cannot now, over a year later, after cashing the settlement checks, claim it intended to only dismiss certain dates of services as to this claim, but failed to indicate such on the notice of dismissal.
Considering the foregoing, it is thereupon,
ORDERED AND ADJUDGED that the action of the above named Plaintiff against the above named Defendant is hereby,
Dismissed with Prejudice.
