24 Fla. L. Weekly Supp. 75a
Online Reference: FLWSUPP 2401LEONInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Where medical provider voluntarily dismissed prior PIP case and years later filed identical claim in new case, insurer served $100 proposal for settlement in new case, and thereafter plaintiff dismissed new case, insurer is entitled to award of attorney’s fees and costs
SOUTH FLORIDA MC, INC., a/a/o MARIA LEON, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-009099-CC 05. March 21, 2016. Wendell M. Graham, Judge. Counsel: Neil Gonzalez, for Plaintiff. Maury Udell, Beighley Myrick & Udell, Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION FORATTORNEY’S FEES AND COSTS
THIS CAUSE came upon to be heard on March 21, 2016 on Defendant’s Motion for Attorney’s Fees and Costs Pursuant to Fla. Stat. Sec. 768.79 and Fla. R. Civ. P.1.442, and the Court having heard argument of counsel, reviewed the record, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as followsBACKGROUND AND FACTS
On January 4, 2011, Plaintiff, through identical counsel, filed virtually the identical lawsuit in case number 11-00048-CC-25. Plaintiff dismissed the action on February 16, 2012. Four and a half years later, despite being on notice of the prior suit and previously dismissing the prior suit, Plaintiff’s counsel, filed this identical claim. On September 10, 2015, Defendant served a proposal for settlement for $100, which was not accepted by Plaintiff. Plaintiff did not seek an extension of time to respond to the proposal for settlement at any time. Instead, Plaintiff, by letter, requested that Defendant provide it with the basis of its $100 offer. Despite no legal requirement to do so, Defendant’s counsel advised plaintiff via email on September 15, 2015 that the offer “is based on Progressive’s good faith reasonable evaluation of the case” and “that he hopes that someone from your office actually looks at the file.” On December 21, 2015, after receipt of Defendant’s Motion for Summary Judgment, Plaintiff dismissed this lawsuit.FINDINGS
A voluntary dismissal of a prior suit, coupled with the dismissal filed in this suit, operates as a final adjudication on the merits. See Fla. R. Civ. P. 1.420(a)(1). Where there is no finding of liability against the insurer, said insurer is entitled to all post proposal attorney’s fees and costs. See State Farm Mut. Auto Ins. Co. v. Nichols, 932 So.2d 1067 (Fla. 2006)[31 Fla. L. Weekly S358a](holding an insurer in a PIP case is entitled to all post proposal attorney’s fees and costs if there is finding of no liability against the insurer). Courts must strictly construe the two dismissal rule, as it is in derogation of a previously existing right. Edmonson v. Green, 755 So.2d 701 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D1827a]. Plaintiff has submitted no evidence that Defendant’s offer of $100 on a previously dismissed cased was in any way, in bad faith.
Defendant Motion for attorney’s fees and costs pursuant to Fla. Stat. §768.79 & Fla. R. Civ. P. 1.442 is GRANTED from September 10, 2015 until the date of this order. The parties shall meet and confer to try to resolve the amount of attorney’s fees and costs and if they are unable to come to an agreement, an evidentiary hearing shall be set, to be mutually coordinated between the parties.
