25 Fla. L. Weekly Supp. 482b

Online Reference: FLWSUPP 2505LEIVInsurance — Personal injury protection — Attorney’s fees — Medical provider’s notice of filing voluntary dismissal, which was filed after hearing on insurer’s motion for summary judgment and after court entered final summary judgment in favor of insurer and which was never ratified by court, is legal nullity — Proposal for settlement — Where PIP policy limits were exhausted before provider filed suit, insurer’s nominal proposal for settlement was good faith offer entitling insurer to attorney’s fees and costs under offer of judgment statute — Claim or defense not supported by material facts or applicable law — Where insurer put provider on notice of binding precedent regarding exhaustion of benefits, and provider’s decision to proceed with case was not good faith attempt to modify existing law, insurer is entitled to award of attorney’s fees under section 57.105

GABLES INSURANCE RECOVERY a/a/o Vivian A. Monteagudo Leiva, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 12-24280-SP-05 (01). July 17, 2017. Shelley J. Kravitz, Judge. Counsel: Robert N. Pelier and Aimee Gunnels, Gables Insurance Recovery, Coral Gables, for Plaintiff. Patrick J. Gerace, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FORENTITLEMENT AND MOTION TO TAX ATTORNEYS’FEES AND COSTS AND MEMORANDUM OF LAWIN SUPPORT THEREOF; AND GRANTINGDEFENDANT’S MOTION TO SEEK ATTORNEYFEES PURSUANT TO FLORIDA STATUTE § 57.105

THIS CAUSE having come on to be heard on Defendant’s Motion for Entitlement and Motion to Tax Attorneys’ Fees and Costs and Memorandum of Law in Support Thereof, filed on October 15, 2014; Defendant’s Supplemental Brief in Support of Defendant’s Motion to Tax Attorney Fees and Costs and Memorandum of Law in Support thereof, filed on December 29, 2016; and Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105, filed on April 23, 2014, and the Court having heard extensive argument of counsel; reviewed the entire record, including all filings by the respective parties; and being otherwise dually advised in the proceedings and premises, it is hereby,

Pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §768.79, on February 15, 2013, the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY served the Plaintiff, GABLES INSURANCE RECOVERY A/A/O VIVIAN A. MONTEAGUDO LEIVA with a good-faith Proposal for Settlement in the total amount of $2.00 ($1.00 for PIP medical benefits inclusive of any interest, and $1.00 for Plaintiff’s Attorney’s fees and costs). The proposal for settlement was properly e-served on Plaintiff on February 15, 2013. The Plaintiff did not accept the proposal for settlement within thirty (30) days; therefore, Defendant’s Proposal for Settlement was deemed rejected by operation of law pursuant to Fla. Stat. §768.79(1) on March 18, 2013 (the first business day after the expiration of 30 days).

On October 8, 2014, this Honorable Court entered its’ Amended Final Order Granting Defendant’s Amended Motion for Final Summary Judgment in this matter [22 Fla. L. Weekly Supp. 637a]. This final judgment entered judgment in favor of the Defendant stated that Plaintiff shall take nothing by this action, the Defendant shall go hence without a day, and the Court reserved jurisdiction to determine Defendant’s attorney’s fees and taxable costs. The October 8, 2014, order contained the necessary language that enters judgment and signaled that judicial labor had come to an end on the merits of the action. See Jackson v. Anthony, 39 So. 3d 1285 (Fla. 1st DCA 2010)¹ [35 Fla. L. Weekly D1655a]. The Amended Final Order Granting Defendant’s Amended Motion for Final Summary Judgment is one of zero liability; thus, pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §768.79, the Defendant is entitled to reasonable attorneys’ fees and costs incurred for the defense of this action after service of the proposal for settlement on February 15, 2013.

After entry of the October 8, 2014, judgment in favor of Defendant, Plaintiff disputed Defendant’s entitlement to attorneys’ fees and costs. Plaintiff filed a motion for rehearing requesting that the Court devote more judicial labor to the matter and change its’ mind; then, on June 25, 2015, the Plaintiff filed a Notice of Voluntary Dismissal without prejudice. On July 5, 2015, the Defendant filed Visoly v. Bodek, 602 So.2d 979 (Fla. 3rd DCA 1992)², as supplemental authority in support of Defendant’s Motion to Tax Attorney Fees and Costs. The Plaintiff then served Defendant with fee discovery as to the amount of attorneys’ fees and costs Defendant claimed it was due. The Defendant served Plaintiff with discovery as to the Plaintiff’s basis for disputing Defendant’s entitlement to attorneys’ fees and costs.

On October 19, 2016, this Honorable Court held hearing on Defendant’s Motion for Entitlement and Motion to Tax Attorneys’ Fees and Costs and Memorandum of Law in Support Thereof. This Court in its’ discretion reserved ruling to allow further briefing. On May 3, 2017, this Honorable Court held the continuation of the hearing on Defendant’s Motion for Entitlement and Motion to Tax Attorneys’ Fees and Costs and Memorandum of Law in Support Thereof, and Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105.

This Court agrees with Defendant that the Plaintiff cannot voluntarily dismiss an action after a summary judgment hearing. Florida Rule of Civil Procedure 1.420(a)(1) is abundantly clear that an action may be dismissed by Plaintiff without order of court any time before a hearing on motion for summary judgment. See Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013)³ [38 Fla. L. Weekly S78a]. In this matter, the Plaintiff’s Notice of Filing Voluntary Dismissal dated June 25, 2015, was filed after the hearing on Defendant’s Amended Motion for Final Summary Judgment and after the Court entered Final Summary Judgment in favor of Defendant on October 8, 2014, and was never ratified by the Court and therefore is a legal nullity. See Stonely v. Moore, 851 So. 2d 905, 906 (Fla. 3rd DCA 2003) [28 Fla. L. Weekly D1875a] (“We conclude that the notice of voluntary dismissal was a nullity. Florida Rule of Civil Procedure 1.420 provides in part that a plaintiff may voluntarily dismiss an action ‘before trial by serving . . . a notice of dismissal at any time before a hearing on motion for summary judgment. . . .’ Fla. R. Civ. P. 1.420(a)(1). In the present case, the notice was not filed until after the hearing on the motion for summary judgment. At that point, the plaintiffs could not dismiss the action by filing a notice; a dismissal could be accomplished only by stipulation of the parties or by order of the court. See Id. R. 1.420(a)(1), (2).” Id.)

DEFENDANT’S MOTION FOR ENTITLEMENT ANDMOTION TO TAX ATTORNEYS’ FEES AND COSTS ANDMEMORANDUM OF LAW IN SUPPORT THEREOF

This Court finds that the Defendant’s Proposal for Settlement meets all the requirements of Fla. R. Civ. P. 1.442 and Fla. Stat. §768.79 and is a qualifying offer. See Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993)⁴. The entire record of this case supports the Defendant’s position that its’ Proposal for Settlement was made in good-faith. The Defendant exhausted the available PIP benefits in this claim prior to Plaintiff filing suit. At the time Defendant served its’ Proposal for Settlement all the binding district court of appeal case law on exhaustion of PIP benefits as applied to the facts of this case was in Defendant’s favor as no untimely bills were paid by Defendant. See Sheldon v. United Services Auto. Ass’n,55 So.3d 595 (Fla. 1st DCA 2010)⁵ [36 Fla. L. Weekly D23a]. This was the law throughout the litigation of this case and remains the law today.⁶ The record demonstrates that the belief of the Defendant was that it had no liability and should not have been part of the litigation. See State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874, 876 (Fla. 2nd DCA 1997)⁷ [22 Fla. L. Weekly D1505c]. As such, the good faith requirement under the offer of judgment statute was satisfied in this case. See Dep’t of Highway Safety & Motor Vehicles, Florida Highway Patrol v. Weinstein, 747 So. 2d 1019 (Fla. 3rd DCA 1999)⁸ [24 Fla. L. Weekly D2799b]. This Court finds that it is Plaintiff’s burden to prove that the Defendant’s Proposal for Settlement was made in bad faith, which the Plaintiff failed to do. See Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348 (Fla. 4th DCA 2011)⁹ [36 Fla. L. Weekly D136d].

This Honorable Court finds that Defendant’s Proposal for Settlement meets all the requirements of Fla. R. Civ. P. 1.442 and Fla. Stat. §768.79 and is a qualifying offer entitling the Defendant to its’ reasonable attorneys’ fees and costs incurred after service of the proposal. As such, this Honorable Court Grants Defendant’s Motion for Entitlement and Motion to Tax Attorneys’ Fees and Costs and Memorandum of Law in Support Thereof.

DEFENDANT’S MOTION TO SEEK ATTORNEYFEES PURSUANT TO FLORIDA STATUTE § 57.105

On March 28, 2014, the Defendant served Plaintiff with Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105. The Defendant’s motion reiterated the position it had maintained throughout the case; that the benefits were properly exhausted and Defendant had no liability in this matter. The Defendant’s motion cited the binding district court case of Northwoods Sports Medicine and Physical Rehabilitation a/a/o Suzanne Cabrera and Wellness Associates of Florida, Inc., a/a/o Daniel North v. State Farm Mut. Auto. Ins. Co., and USAA Cas. Ins. Co., 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]. Defendant’s motion put Plaintiff on notice that Northwoods, addressed whether exhaustion of benefits absolves the insurer from any responsibility to pay an otherwise valid claim where the exhaustion occurred after the insurer “paid an amount the provider claims is less than required by the contract”; and answered this question in the affirmative extending the reasoning of Simon, Stand-Up MRI, and Sheldon. This Court finds that the Defendant properly put the Plaintiff on notice that the binding law in Northwoods squarely addressed the claims Plaintiff raised in this litigation and that the Plaintiff’s claims of liability on behalf of the Defendant were not supported by the material facts of the case. Plaintiff did not dismiss this action within the twenty-one (21) day safe harbor period. On April 23, 2014, the Defendant filed its’ Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105.

Plaintiff argues that the Court should not grant Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105 because the law was in “a state of flux” as there was an 11th circuit appellate opinion in its’ favor at the time the motion was served. Based on the facts and circumstances of this case, this Court disagrees. This Court finds that at the time Defendant served Plaintiff with its’ Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105 the Plaintiff/Plaintiff’s Counsel knew or should have known that the binding law addressing the claims raised by Plaintiff demonstrated that the Plaintiff’s claims were not supported by the material facts of this case. See Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005)¹⁰ [30 Fla. L. Weekly D2099a]. This Court disagrees that the claims advanced by Plaintiff after service of Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105 were a good faith attempt to modify existing law at that point in time. In this matter, the Defendant and the Court provided the Plaintiff with multiple opportunities to dismiss this case. The Northwoods, decision squarely addressed the arguments Plaintiff raised in this case and the Defendant put Plaintiff on notice of the decision. See Stanfill v. State, 384 So.2d 141 (Fla. 1980) (“Decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by the Supreme Court of Florida.”). The Plaintiff decided to press forward in this case after the Northwoods, decision pronounced the law of the State of Florida on the claims raised by Plaintiff and continued to pursue these claims until final summary judgment was entered in favor of the Defendant. Based on these facts, this Court Grants Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105.

ORDERED AND ADJUDGED that:

1. Defendant’s Motion for Entitlement and Motion to Tax Attorneys’ Fees and Costs and Memorandum of Law in Support Thereof is hereby GRANTED. The Defendant is entitled to its’ reasonable attorneys’ fees and costs incurred in the defense of this action pursuant to Defendant’s Motion for Entitlement and Motion to Tax Attorneys’ Fees and Costs and Memorandum of Law in Support Thereof.

2. Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105 is hereby GRANTED. The Defendant is entitled to its’ reasonable attorneys’ fees and costs incurred pursuant to Defendant’s Motion to Seek Attorney Fees Pursuant to Florida Statute § 57.105.

3. This Honorable Court reserves jurisdiction to determine the reasonable amount of an award of attorneys’ fees and costs to Defendant.

__________________

¹Jackson v. Anthony, 39 So. 3d 1285 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D1655a] (“The filing of the judgment with the clerk signals that the judicial labor has come to an end.”); See also, HSBC Bank USA, National Association, v. Joseph T. Buset a/k/a Joseph Thomas Buset and Margaret Buset a/k/a Margaret Jean Buset, et al., Case No. 3D16-1383 (Fla. 3rd DCA 2017) [42 Fla. L. Weekly D836a] (“. . .Specifically, the trial court’s Order ‘grant’s Defendants’ Motion for Involuntary Dismissal and enters judgment in favor of the Defendants who shall go forth without day.’ (Emphasis added).”

²Visoly v. Bodek, 602 So 2d 979 (Fla. 3rd DCA 1992) (“Plaintiff could not voluntarily dismiss action after granting of motion to strike the complaint as a sham; rules permit voluntary dismissal only prior to hearing on motion for summary judgment and rule relating to motions to strike a sham complaint states that summary judgment may be entered.”) (Emphasis added).

³Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013) [38 Fla. L. Weekly S78a] (“Under its terms, rule 1.420(a)(1) authorizes a plaintiff to take one voluntary dismissal without prejudice, unless “otherwise stated in the notice or stipulation,” by serving “a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court.” Id.)

⁴Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993) (“Turning to the substance of section 768.79 itself, we conclude that the legislature has created a mandatory right to attorney’s fees, if the statutory prerequisites have been met.”) See also, Key West Seaside, LLC, v. Certified Lower Keys Plumbing, Inc., 208 So. 3d 718 (Fla. 3rd DCA 2015) [40 Fla. L. Weekly D2052b] (“Entitlement to fees and costs to a qualifying offeror is mandatory under statute and rule governing offers of judgment if the statutory prerequisites have been met. F.S.A. § 768.79(1), (7)(a); F.S.A. RCP Rule 1.442(h)(1).”)

⁵Sheldon v. United Services Auto. Ass’n, 55 So.3d 595 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a] (“As Dr. Sheldon acknowledges, Florida courts have established that, once an insurer has paid out the policy limits to the insured (or to various providers as assignees), it is not liable to pay any further PIP benefits, even those that are in dispute. See Simon v. Progressive Express Insurance Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. Further, if benefits are exhausted after suit is filed, but before the suit is served on the insurer, the suit for benefits may not go forward, because the insurer has met its obligation under the contract to pay the policy amount. See Progressive American Insurance Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008).” [33 Fla. L. Weekly D1746a])

⁶GEICO Indem. Co. v. Gables Ins. Recovery, Inc., 159 So. 3d 151, 155 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D2561a] (“Coral Imaging only applies where the PIP insurer exhausts benefits by improperly paying untimely claims.”)

⁷State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874, 876 (Fla. 2nd DCA 1997) [22 Fla. L. Weekly D1505c] (“The $1 offer of judgment is a statement by State Farm that it believes it has no liability and should not be a part of the litigation. Under these circumstances the good faith of the $1 offer of judgment is demonstrated.”)

⁸Dep’t of Highway Safety & Motor Vehicles, Florida Highway Patrol v. Weinstein, 747 So. 2d 1019 (Fla. 3rd DCA 1999) [24 Fla. L. Weekly D2799b](“Good faith requirement under offer of judgment statute is determined by the subjective motivations and beliefs of the offeror, rather than by an objective assessment of both parties’ positions; so long as the offeror has a basis in known or reasonably believed fact to conclude that the offer is justifiable, the good faith requirement has been satisfied. F.S.A. § 768.79.”)

⁹Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D136d] (“For purposes of offer of judgment statute and rule, the offeree bears the burden of proving the offeror’s proposal was not made in good faith. F.S.A. § 768.79(7)(a); F.S.A. RCP Rule 1.442(h)(1).”)

¹⁰Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D2099a] (“Under amended version of statute authorizing attorney fees for frivolous claims, a party may be subject to fees if a claim is not dropped or dismissed when it becomes evident it is no longer justiciable, even though it may not have been frivolous when filed. F.S.A. 57.105.”)