24 Fla. L. Weekly Supp. 724a
Online Reference: FLWSUPP 2409LANEInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Where medical provider lacked standing at outset of case due to expiration of registration of fictitious name to which insured assigned PIP benefits, insurer is entitled to award of attorney’s fees and costs
STAN LANE, an insured individual by and through his/her assignee, Jeff Davis D.C., P.A., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 15-CC-024066-DIV J. September 15, 2016. Gaston J. Fernandez, Judge. Counsel: Philip A. Friedman, FL Legal Group, Tampa, for Plaintiff. Lisa M. Lewis and Edwin V. Valen, Cole, Scott, & Kissane P.A., Tampa, for Defendant.
[Editor’s note: Decision in underlying case affirmed on appeal. 25 Fla. L. Weekly Supp. 1006f]
ORDER ON DEFENDANT’S MOTION TOTAX ATTORNEYS’ FEES AND COSTS
THIS CAUSE having come before the Court on July 20, 2016 for hearing on Defendant’s Motion to Tax Attorneys’ Fees and Costs, and the Court having heard argument of counsel, and being otherwise advised in the Premises, hereby finds as follows:
FACTS
1. Jeff Davis D.C., P.A. (“Plaintiff”) has brought this breach of contract action against State Farm Mutual Automobile Insurance Company (“Defendant”) for Personal Injury Protection benefits under an insurance policy providing coverage to Stan Lane.
2. Stan Lane executed an assignment of benefits to Brandon Chiropractic Associates, a fictitious name, on December 14, 2014.
3. Plaintiff initiated the subject cause of action on July 21, 2015.
4. At both the time of execution of the assignment of benefits and time of filing of the subject cause of action, Brandon Chiropractic Associates was an unregistered fictitious name as the registration had expired.
5. Defendant filed its Answer and Affirmative Defenses in this matter on November 12, 2015, alleging Plaintiff lacked the requisite standing to pursue the cause of action.
6. On or about January 4, 2016, Defendant served a Motion to Tax Attorneys’ Fees and Costs on Plaintiff pursuant to Florida Statute §57.105, alleging that Plaintiff’s cause of action was not supported by the applicable facts or law because Plaintiff lacked standing to pursue the cause of action because Brandon Chiropractic Associates is an unregistered fictitious name.
7. On January 26, 2016, after expiration of the twenty one (21) day safe harbor provision prescribed by Florida Statute §57.105(4), Defendant filed its Motion to Tax Attorneys’ Fees and Costs with the Court.
8. On April 11, 2016, Plaintiff voluntarily dismissed the subject cause of action without prejudice.
9. Thereafter, but also on April 11, 2016, Defendant filed its Motion to Tax Attorneys’ Fees and Costs, asserting its previously filed motion pursuant to Florida Statute §57.105 for its basis seeking fees and Florida Rule 1.420(d) as its basis to seek taxable costs.
RULING
The Court finds that at the filing of this lawsuit, the Plaintiff did not have standing as a result of the expired fictitious name registration, and because there was no standing, the Motion is granted. The Court will not find that there was any bad faith on the part of the Plaintiff or the Plaintiff’s attorney.
As such, Defendant’s Motion to Tax Attorneys’ Fees pursuant to Florida Statute §57.105 and taxable costs pursuant to Florida Rule of Civil Procedure 1.420(d) is hereby GRANTED as to entitlement only.
This Court reserves jurisdiction as to the reasonable amount of attorneys’ fees and taxable costs to be taxed against Plaintiff at a subsequent evidentiary proceeding.
