25 Fla. L. Weekly Supp. 748a

Online Reference: FLWSUPP 2508MELIInsurance — Personal injury protection — Attorney’s fees — Charging lien — Where medical provider’s former attorney was discharged after he served demand letter on insurer for PIP benefits and provider subsequently retained new counsel who served second demand letter, filed complaint, and attained settlement of PIP action, former attorney is not entitled to attorney’s fees for pre-suit work that was not necessitated by any unreasonable conduct on part of insurer — Former attorney is not entitled to charging lien for legal services that produced no tangible fruit for provider — Former attorney, who is not party to PIP case, is not permitted to serve discovery on insurer in that case — Motion to discharge lien, motion for protective order, and motion to strike discovery requests are granted

APPLE MEDICAL CENTER, LLC A/A/O MELIANIE MELIEN, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 14-7888-SP-25 04. Civil Division. August 27, 2015. Carlos Guzman, Judge. Counsel: Patrick J. Gerace, Progressive PIP House Counsel, Fort Lauderdale, and Douglas H. Stein, Miami, for Defendant Progressive. Mark J. Feldman, Mark J. Feldman, P.A., Miami, for Mark J. Feldman, P.A.

Cert. Denied. (Mark J. Feldman, P.A. v. Apple Medical Center, 3D17-2731, 5-22-2018)

[AFFIRMED. 11th Cir., Case No. 2015-000312-AP-01, 10-4-2017)]

ORDER GRANTING DEFENDANT’S MOTION TODISCHARGE LIEN FILED BY MARK J. FELDMAN, P.A./MARK J. FELDMAN, ESQ.; AND DEFENDANT’SMOTION FOR PROTECTIVE ORDER AND MOTIONTO STRIKE DISCOVERY PROPOUNDED BYMARK J. FELDMAN, P.A./MARK J. FELDMAN, ESQ.

THIS CAUSE having come on to be heard on Defendant’s Motion to Enforce Settlement, Motion to Compel Voluntary Dismissal with Prejudice, and Motion to Discharge Lien filed by Mark J. Feldman, P.A./Mark J. Feldman, Esq.; Defendant’s Motion for Protective Order and Motion to Strike Discovery Propounded by Mark J. Feldman, P.A./Mark J. Feldman, Esq.; Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s Motion to Enforce Lien; and Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s Motion to Compel Discovery, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, the Court rules as follows:FINDINGS OF FACT: 1. This is a dispute regarding an attorney lien from Mark J. Feldman. P.A./Mark J. Feldman, Esq., for legal services allegedly performed prior to the Plaintiff,APPLE MEDICAL CENTER, LLC, commencing litigation in this matter for PIP benefits.

2. On March 26, 2013, MELIANIE MELIEN was involved in an automobile accident.

3. Melianie Melien was covered under a PIP policy of insurance issued by PROGRESSIVE (Policy Number 48521315). This policy was in full force and effect on the date of the alleged accident March 26, 2013.

4. On September 6, 2013, MELIANIE MELIEN sought treatment from the Plaintiff, APPLE MEDICAL CENTER, LLC, for injuries related to the alleged March 26, 2013 accident. The Plaintiff subsequently submitted bill(s) for the services to the Defendant.

5. Prior to receiving any statutorily required demand letters from the Plaintiff on the Melianie Melien PIP claim, the Defendant, PROGRESSIVE, made payment to Plaintiff for PIP benefits in the amount of $292.61 along with applicable interest.

6. On or about December 30, 2013, the Defendant, PROGRESSIVE, received a Notice of Intent to Initiate Litigation (“Demand Letter”) from Mark J. Feldman, P.A./Mark J. Feldman, Esq., 2350 Coral Way, Suite 302, Miami, FL 33145, demanding that PROGRESSIVE reimburse Plaintiff for date of service March 26, 2013.

7. On or about January 17, 2014, the Defendant, PROGRESSIVE, responded to the demand letter from Mark J. Feldman, P.A./Mark J. Feldman, Esq., by advising that payment in the amount of $292.61 for PIP benefits plus applicable interest had already been made to the Plaintiff, APPLE MEDICAL CENTER, LLC, and that the draft had not been cashed to date. PROGRESSIVE issued an additional $67.65 for PIP benefits along with applicable penalty, postage, and interest.

8. The record reveals that in February of 2014, Mark J. Feldman, P.A./Mark J. Feldman, Esq., was discharged as the attorney for the Plaintiff, APPLE MEDICAL CENTER, LLC. The record further demonstrates that the draft for the additional $67.65 was never negotiated.

9. On or about April 10, 2014, the Defendant, PROGRESSIVE, received a Notice of Intent to Initiate Litigation (“Demand Letter”) from Michael J. Feldman, P.A./Michael J. Feldman, Esq., 299 Alhambra Circle, Suite 405, Coral Gables, FL 33134, demanding that PROGRESSIVE reimburse Plaintiff for date of service March 26, 2013, claiming that no amount had been previously paid.

10. On or about May 6, 2014, the Defendant, PROGRESSIVE, responded to the demand letter from Michael J. Feldman, P.A./Michael J. Feldman, Esq., by advising that payment had already been made to the Plaintiff, APPLE MEDICAL CENTER, LLC, in the amount of $292.61 for PIP benefits plus applicable interest, and that the draft had not been cashed to date. PROGRESSIVE further advised that the draft for the additional $67.65 had not been cashed to date.

11. On or about June 3, 2014, Michael J. Feldman, P.A./Michael J. Feldman, Esq., 299 Alhambra Circle, Suite 405, Coral Gables, FL 33134, filed the instant lawsuit against the Defendant, PROGRESSIVE. On or about July 18, 2014, the Plaintiff, APPLE MEDICAL CENTER, LLC A/A/O MELIANIE MELIEN through its’ attorney Michael J. Feldman, P.A./Michael J. Feldman, Esq., 299 Alhambra Circle, Suite 405, Coral Gables, FL 33134, served the Defendant PROGRESSIVE SELECT INSURANCE COMPANY with the Complaint in this action.

12. After having been discharged by Plaintiff, APPLE MEDICAL CENTER, LLC, for approximately six (6) months, during which time Plaintiff, APPLE MEDICAL CENTER, LLC, retained a new attorney Michael J. Feldman, P.A./Michael J. Feldman, Esq., 299 Alhambra Circle, Suite 405, Coral Gables, FL 33134, who served the Defendant with his own pre-suit demand letter and commenced litigation against the Defendant, PROGRESSIVE; on or about August 4, 2014, Mark J. Feldman, Esq., filed a Notice of Filing Mark J. Feldman, P.A.’s Notice of Charging and Retaining Liens in this matter.

13. On or about December 4, 2014, the Plaintiff, APPLE MEDICAL CENTER, LLC, through its’ attorney Michael J. Feldman, P.A./Michael J. Feldman, Esq., 299 Alhambra Circle, Suite 405, Coral Gables, FL 33134, and the Defendant, PROGRESSIVE, through its’ attorney amicably resolved the dispute in this lawsuit and settled all issues between the parties regarding this claim, including Plaintiff, APPLE MEDICAL CENTER, LLC’s attorney fees and costs.

14. On or about January 6, 2015, Mark J. Feldman, P.A./Mark J. Feldman, Esq., filed its’ Motion to Enforce Lien and served the Defendant, PROGRESSIVE, with multiple sets of purported discovery requests in the form of requests for admissions, requests for production, and interrogatories.

15. 0n or about January 13, 2015, the Defendant, PROGRESSIVE, filed its’ Motion to Enforce Settlement, Motion to Compel Voluntary Dismissal with Prejudice, and Motion to Discharge Lien filed by Mark J. Feldman, P.A./Mark J. Feldman, Esq.; and Defendant’s Motion for Protective Order and Motion to Strike Discovery Propounded by Mark J. Feldman, P.A./Mark J. Feldman, Esq.; and served Mark J. Feldman, P.A./Mark J. Feldman, Esq. with Defendant’s Motion to Seek Attorney Fees pursuant in Florida Statute § 57.105 Against Mark J. Feldman, P.A./Mark J. Feldman, Esq., and the statutorily required Safe Harbor Letter providing Mark J. Feldman, P.A./Mark J. Feldman, Esq., twenty-one (21) days to withdraw its’ Motion to Enforce Lien.

16. On June 23, 2015, this Court heard extensive argument from the Defendant, PROGRESSIVE, and Mark J. Feldman, P. A ./Mark J. Feldman, Esq., on Defendant’s Motion to Enforce Settlement, Motion to Compel Voluntary Dismissal with Prejudice, and Motion to Discharge Lien Filed by Mark J. Feldman, P.A./Mark J. Feldman, Esq.; and Defendant’s Motion for Protective Order and Motion to Strike Discovery Propounded by Mark J. Feldman, P.A./Mark J. Feldman, Esq., and Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s Motion to Enforce Lien and Motion to Compel Discovery.¹

QUESTION PRESENTED:

Whether Mark J. Feldman, P.A./Mark J. Feldman, Esq., is entitled to attorney fees for pre-suit legal services allegedly performed in connection with a claim for Personal Injury Protection benefits when Mark J. Feldman, P.A./Mark J. Feldman, Esq., was not the attorney of record at any time during the lawsuit; the Plaintiff, APPLE MEDICAL CENTER, LLC, discharged Mark J. Feldman, P.A./Mark J. Feldman, Esq., three (3) months prior to the filing of the lawsuit; retained new counsel, Michael J. Feldman, P.A./Michael J. Feldman, Esq., who served the Defendant, PROGRESSIVE, with his own pre-suit demand letter, then filed the lawsuit against the Defendant, PROGRESSIVE, and settled the lawsuit on behalf of the Plaintiff, APPLE MEDICAL CENTER, LLC.

DISCUSSION:

The issues that are the subject of this dispute require this Court to analyze the mechanism through which attorney fees are obtained by successful Plaintiffs who commence litigation over personal injury protection benefits, Florida Statute Section 627.428, and the case authority interpreting it’s application in the context of PIP claims.

A. Legal Services Provided Prior to a Plaintiff Filing a Complaint for PIP Benefits

The Third District Court of Appeals has analyzed whether there is entitlement to attorney fees for work which was performed prior to filing the complaint for PIP benefits in the matter of U.S. Fidelity and Guaranty, Co. v. Rosado, 606 So. 2d 628 (Fla. 3d DCA 1992). In Rosado, the court reversed the trial court’s award of attorney fees for work performed by the Plaintiff’s attorney prior to the filing of the lawsuit and remanded for a determination as to whether the pre-suit work, particularly those legal services rendered prior to providing the insurer with proof of claims, was necessitated by the insurer’s unreasonable conduct. While the court recognized that there may be certain circumstances where attorney’s fees may be awarded for work done prior to litigation, the court held that there must be a determination at the trial court level that the pre-suit work was necessitated by the insurer’s unreasonable conduct. Id. In the instant matter, this Court has found that the record does not support Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s position that the insurer, PROGRESSIVE’s conduct was unreasonable. In this claim, the Defendant, PROGRESSIVE, made payment of the PIP benefits claimed to be owed along with applicable interest to the Plaintiff, APPLE MEDICAL CENTER, LLC, prior to receipt of Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s pre-suit demand letter. In response to the demand letter, PROGRESSIVE, made payment of additional PIP benefits along with applicable penalty, postage, and interest. There has been no showing that PROGRESSIVE’s conduct was unreasonable. United Automobile Insurance Company, Appellant, v. Affiliated Heath Centers, Inc., a/a/o Jacqueline Olivas, Appellee, Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County, Case No. 12-206 A.P. L.T. Case No. 07-15984 CC 05., January 16, 2015 [22 Fla. L. Weekly Supp. 687a]. [Affiliated argued, both in the trial court and on appeal, that United Auto acted unreasonably by making no attempt to pay the claim until the demand letter was sent. The appellate court rejected this argument and held that there was no evidence in the record showing United Auto acted unreasonably which would justify the addition of pre-suit hours in determining whether Affiliated was the prevailing party entitled to attorneys fees, citing, Rosado, 606 So. 2d 628.]

A close analysis of the statutory mechanism for recovery of attorney fees in personal injury protection lawsuits crystalizes the rationale as to why attorney fees are not recoverable for pre-suit work in PIP claims. Florida Statute Section 627.428 provides the basis for recovery of attorney’s fees by a successful Plaintiff who is forced to file suit to recover insurance policy proceeds. Florida Statute Section 627.428 reads, in pertinent part, as follows:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Section 627.478(1), Fla. Stat. [Emphasis Supplied]

In Kearney v. Auto-Owners Insurance Company, the United States District Court tor the Middle District of Florida analyzed this issue in its’ detailed order awarding attorney’s fees. The Court declined to award attorney’s fees for work done before the Complaint was drafted and filed reasoning that Kearny’s request for attorney’s fees for pre-suit legal work stretches Florida Statute Section 627.428 too far from its actual language. In analyzing Section 627.428, Fla. Stat., the Court ruled, in pertinent part, as follows:

“The statute provides for awarding reasonable fees only for an attorney “prosecuting the suit in which the recovery is had.” The Legislature chose the phrase “prosecuting the suit” deliberately, and the phrase limits what fees can be recovered. First, the statute only authorizes fees for handling a “suit,” not for handling a client’s needs outside of litigation. Second, the word “prosecute” also limits fees to work on a lawsuit. “Prosecute” means “to commence and carry out a legal action.” The term specifically excludes pre-suit work. . . . “The narrow sense of the statute’s use of the phrase ‘prosecuting the suit’ should only include those fees incurred after the Plaintiff’s formal initiation of their litigation and no pre-suit activities. . . .”

The Court continued its analysis, ruling that because Section 627.428, Fla. Stat. is in derogation of the common law, it must be strictly construed. The Court reasoned as follows:

“If the Legislature had wanted to award pre-suit attorney’s fees, it would not have written a statute that limits compensation to “prosecuting a suit.” Because § 627.428 deviates from the common law, the canons of statutory construction require the Court to construe the statute narrowly. Read narrowly, the statute does not authorize an attorney’s fee award [for] work not spent “prosecuting the suit.”

Kearney v. Auto-Owners Insurance Co., Order Awarding Attorney’s Fees, 2010 WL 3119380 (M.D. Fla. 2010).

This Court is cognizant of the fact that there are certain types of actions and situations where attorney fees are awarded for pre-suit work. An example of this would be in medical malpractice suits. The key distinction in those types of suits is that the pre-suit work is extensive and detailed, and there is a separate and distinct statutory source for the recovery of costs and fees. “[Florida Statutes] Sections 766.106(5)-(9) and 766.204-.205 provide for informal pre-suit discovery after a notice of intent is issued, and require each party to provide the other with ‘reasonable access to information within its possession or control in order to facilitate evaluation of the claim.’ § 766.205(1), Fla. Stat. (1995). The unreasonable failure of any party to comply with informal discovery may justify dismissal of that party’s claims or defenses. Id. § 766.106(3)(a). After completion of pre-suit investigation and any informal discovery, and even before the actual filing of a medical negligence claim, ‘any party may file a motion in the circuit court requesting the court to determine whether the opposing party’s claim or denial rests on a reasonable basis.’ Id. § 766.206(1). If the court finds the claimant’s notice of intent to initiate litigation is not in compliance with the reasonable investigation requirements of sections 766.201-.212, the court may dismiss the claim or impose other sanctions, including costs and attorney’s fees. Id. § 766.206(2). Section 766.206(3) is a similar provision addressing the defendant’s non-compliance with the statute, and providing for appropriate sanctions such as the striking of the defendant’s ‘response’ and the assessment of costs and fees.” Kukral v. Mekras, 679 So. 2d 278, 281 (Fla. 1996) [21 Fla. L. Weekly S251a]. In this matter, Mark J. Feldman, P.A./Mark J. Feldman, Esq’s claim for attorney fees was significantly different as it was for pre-suit legal services in connection with a PIP claim made under § 627.428.

B. The Imposition of Charging Liens and Retaining Liens in Connection with Legal Services

This Court has carefully analyzed the applicable law regarding the imposition of charging liens and retaining liens by law firms/attorneys in connection with alleged legal services. It is important to note that there is a clear distinction drawn between a charging lien and a retaining lien. “A ‘retaining lien’ is an attorney’s possessory interest in a client’s papers, money, securities, and files that attaches to secure the client’s payment of the fees and costs earned by the attorney to that point.” “The ‘charging lien’ is an equitable right to have costs and fees due an attorney services in the suit secured to him in the judgment or recovery in that particular suit,” LaVere-Alvaro v. Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., 54 So.3d 1056 [(Fla. 2DCA 2011)] [36 Fla. L. Weekly D386e]. In LaVere, the appellate court held that the trial court could not impose a charging lien absent a finding that [the] law firm’s services benefitted [the] client. “It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services ” LaVere-Alvaro v. Syprett, 54 So.3d 1056. In this matter, the record reveals that the alleged services of Mark J. Feldman, P.A./Mark J. Feldman, Esq., failed to produce a positive judgment or settlement for the Plaintiff, APPLE MEDICAL CENTER, LLC, as the services which are the subject of this dispute were allegedly provided to the Plaintiff prior to litigation commencing in this matter; and the Plaintiff discharged Mark J. Feldman, P.A./Mark J. Feldman, Esq., prior to retaining new counsel, Michael J. Feldman, Esq., who served his own demand letter on behalf of the Plaintiff, filed and served the Plaintiff’s complaint against the Defendant, and subsequently resolved the claim with the Defendant. The settlement of the Plaintiff, APPLE MEDICAL CENTER, LLC’s claims in this matter was produced by Michael J. Feldman, Esq., not Mark J. Feldman, P.A./Mark J. Feldman, Esq. As such, there are no tangible fruits for Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s alleged lien to attach to in this matter and Mark J. Feldman, P.A./Mark J. Feldman. Esq., is not entitled to attorney fees.

C. Discovery Served by a Non-Party

As noted above, Mark J. Feldman, P.A./Mark J. Feldman, Esq., served the Defendant, PROGRESSIVE, with multiple purported discovery items in the form of requests for admissions, requests for production, and interrogatories The rules of civil procedure do not provide for a non-party to serve discovery in this situation.

Rule 1.280(b)(1) of the Florida Rules of Civil Procedure states:

In General, Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery or admissible evidence.

See Fla.R.Civ.P. 1.280(b)(l). (Emphasis Supplied)

Mark J. Feldman, P.A./Mark J. Feldman, Esq., is not and has never been a party in this action. As such, Mark J. Feldman, P.A./Mark J. Feldman, Esq., is not permitted to serve discovery on the Defendant. The Bank of New York Mellon, et. al, v. Thomas A. Teaford, et. al, Circuit Court, 12th Judicial Circuit in and for Manatee County, 22 Fla. L. Weekly Supp. 237a, Case No, 2008-CA-011632, August 28, 2014, [Civil procedure — Frivolous pleadings — Sanctions — Pleadings filed by non-party who has no legal authority to file documents in cause are stricken, and attorney representing non-party is sanctioned]

CONCLUSIONS:

In sum, this Court finds that the lien filed by Mark J. Feldman, P.A./Mark J. Feldman, Esq., does not entitle Mark J. Feldman, P.A./Mark J. Feldman, Esq., to attorney fees in this matter as the legal services in connection with this PIP claim were allegedly performed prior to the Plaintiff filing suit (through a different attorney) and there has been no showing that the Defendant’s conduct prior to Plaintiff filing suit was unreasonable. This Court is bound by the holdings in U.S. Fidelity and Guaranty, Co. v. Rosado, 606 So. 2d 628 (Fla. 3d DCA 1992), and the plain language of Fla. Stat. § 627.428. Furthermore, this Court finds that the alleged lien does not hold any value as the alleged services of Mark J. Feldman, P.A./Mark J. Feldman, Esq., failed to produce a positive judgment or settlement for the Plaintiff, APPLE MEDICAL CENTER, LLC. This Court finds that Mark J. Feldman, P.A./Mark J. Feldman, Esq., is not a party to this litigation and as such is not permitted to serve discovery on any party in this matter. As such, the purported discovery filed by Mark J. Feldman, P.A./Mark J. Feldman, Esq., is hereby stricken

.RULINGS:

ORDERED AND ADJUDGED that:

1. Defendant’s Motion to Discharge Lien filed by Mark J. Feldman, P.A./Mark J. Feldman, Esq., is hereby granted. The lien filed by Mark J. Feldman, P.A./Mark J. Feldman, Esq., is hereby discharged in this matter.

2. Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s Motion to Enforce Lien is hereby denied with prejudice.

3. Defendant’s Motion for Protective Order and Motion to Strike Discovery Propounded by Mark J. Feldman, P.A./Mark J. Feldman, Esq., is hereby granted.

4. Mark J. Feldman, P.A./Mark J. Feldman, Esq.’s Motion to Compel Discovery is hereby denied with prejudice.

5. The Court reserves jurisdiction to enforce the settlement between the parties and determine the Defendant’s entitlement to reasonable attorney fee and costs against Mark J. Feldman, P.A./Mark J. Feldman, Esq., for the filing of frivolous pleadings and motions in this action.

__________________

¹The Plaintiff’s Complaint filed by Michael J. Feldman, Esq.; the Notice of Filing Mark J. Feldman’s Notice of Charging and Retaining Liens; the demand letters sent by Michael J. Feldman, Esq., and Mark J. Feldman, Esq.; and the Defendant’s responses to the demand letters were all properly authenticated by the Defendant’s custodian of the claim file and filed into the record prior to the hearing(s) held in this matter which are addressed by this order.