25 Fla. L. Weekly Supp. 970a
Online Reference: FLWSUPP 2511PROBInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Insurer that obtained summary judgment in PIP suit due to defective demand letter that failed to take into account prior partial payments made by insurer is entitled to award of attorney’s fees under section 57.105
DR. KRISTIN M. KIDGELL, DC, as assignee of Farrah Probst, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims. Case No. 16-003131-SC (SOUTH). November 29, 2017. Lorraine Kelly, Judge. Counsel: C. Spencer Petty, Irvin & Petty, P.A., St. Petersburg, for Plaintiff. Lisa M. Lewis and Edwin V. Valen, Cole, Scott & Kissane, P.A., Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTIONTO TAX ATTORNEYS’ FEES AND COSTS(as to entitlement)
THIS CAUSE having come before the Court 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. DR. KRISTIN M. KIDGELL, DC (“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 Farrah Probst.
2. On August 5, 2016, Defendant sent to Plaintiff a then unfiled Motion for Sanctions pursuant to F.S. 57.105, along with a twenty-one (21) day letter allowing Plaintiff an opportunity to dismiss within said timeframe, as Plaintiffs demand letter failed to comply with F.S. 627.736(10).
3. Plaintiff did not dismiss its action within twenty-one (21) days.
4. On September 7, 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.
5. On November 1, 2016, Defendant prevailed on its Motion for Summary Judgment, as Plaintiff’s demand letter dated November 17, 2015 failed to take into account the prior partial payments made by State Farm for dates of service included in the demand letter.
6. A Final Judgment was executed in favor of Defendant on May 18, 2017.
7. Thereafter, on May 25, 2017, 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
This Court finds that the requirements of Florida Statute 627.736 must be strictly construed. See MRI Associates of America, LLC a/a/o Ebba Register v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b] (the language of Florida Statute 627.736(10) requires precision in its demand letter by its requirement that an itemized statement specify “each exact amount.”). Plaintiff’s demand letter dated November 17, 2015 failed to take into account the prior partial payment made by State Farm for dates of service included in the demand letter.
As such, Defendant’s Motion to Tax Attorneys’ Fees and Costs Pursuant to F.S. 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.
