25 Fla. L. Weekly Supp. 665b
Online Reference: FLWSUPP 2507BUCHInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Where insurer has provided no evidence that complaint in voluntarily dismissed action for PIP benefits was frivolous other than self-serving statement that benefits were correctly paid in accordance with policy endorsement and statutory fee schedules, insurer is not entitled to award of attorney’s fees under section 57.105
GOLDSON SPINE REHABILITATION CENTER a/a/o Norbert Buchanan, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-005636 COCE 50. August 31, 2017. Kim Mollica, Judge. Counsel: Michael Fischetti, Michael J. Fischetti, PA., and Howard Myones, Esq. Law Offices of Anidjar & Levine, Fort Lauderdale, for Plaintiff. Randell Bishop, Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION TO SEEKATTORNEY’S FEES PURSUANT TOFLORIDA STATUTE §57.105
THIS CAUSE, having come before the Court, regarding the Defendant’s Motion to Seek Attorney’s Fees Pursuant to Florida Statute §57.105, and the Court having reviewed the motions, the entire court file, and all relevant legal authorities, and otherwise having been fully advised in the premises, the court finds as follows:
On March 17, 2014, the Plaintiff filed a one (1) count breach of contract for damages in the amount of $907.86. On August 12, 2014, the Defendant filed its Motion to Seek Attorney’s Fees Pursuant to Florida Statute §57.105. The Defendant’s motion, in relevant part, states “that the plaintiff and/or the plaintiffs attorneys [sic] know or should have known that the action is frivolous because all benefits have been paid in accordance with the terms and conditions of the subject policy and applicable fee schedule as evidenced by language in Progressive’s policy endorsement” Thereafter, the Defendant cites to its policy language. Based upon the court’s review of the motion, there is no further support for the Defendant’s allegation that the Plaintiffs complaint is frivolous other than the self-serving statement that the benefits were previously paid correctly. The Defendant cites no sister court rulings nor any binding or persuasive law to support its position.
On June 22, 2016, the Plaintiff voluntarily dismissed this action without prejudice. Based on the fact that the Plaintiff dismissed its case nearly two (2) years after the Defendant’s motion was filed, the Defendant moved for entitlement to fees under Fla. Sta. §57.105. The statute states, in pertinent part:
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
Based on the plain language of Fla. Stat. §57.105, it is clear that the movant must show that the losing party and/or its attorney knew or should have known that a claim was not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of the law to the facts of the case. In Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 505 (Fla. 1982), “the supreme court recognized that in spite of the purpose of 57.105, to discourage baseless claims by putting a price tag on them, the statute cannot be extended to every case, and every unsuccessful litigant. Not every party that prevails in a motion for summary judgment, motion to dismiss for failure to state a cause of action, judgment on the pleadings, evidentiary hearing or trial, is automatically entitled to attorney’s fees under 57.105.” Fairview Properties, Inc. v. Pate Const. Co., Inc. 638 So. 2d 998, 999 (Fla. 4th DCA 1994).
When determining entitlement to attorney’s fees pursuant to section 57.105, a trial court must make “an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit is filed.” Chue v. Lehman, 21 So.3d 890, 891 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2263a]. To award fees, the trial court must find that the action was so “frivolous or devoid of merit both on the facts and the law as to be completely untenable.” Id.
At the hearing on this motion, the Defendant provided absolutely no evidence that the Plaintiff and/or its counsel knew or should have known its lawsuit was frivolous or devoid of merit. The issue of policy language interpretation is regularly and consistently litigated throughout the state of Florida. Providers cannot and should not be punished for challenging the interpretation of the language of an insurance policy. Furthermore, even if the Defendant had provided the court with case law in support of its position, “a good faith attempt to change the law does not render an action frivolous.” Fairview, 638 So.2d 998 at 1000. See Muckerman v. Burris, 553 So.2d 1300 (Fla. 3rd DCA 1989) (holding that it was wrong to assess attorney’s fees against an attorney for the unsuccessful plaintiff where the plaintiff was engaged in a good faith, soundly based, non-frivolous but unsuccessful attempt to change an existing law).
At the moment, the Court is aware of hundreds of similar actions pending in Broward County alone. The court cannot fathom how many are currently pending throughout the state. Attempting to seek attorney’s fees on an issue that is being actively litigated throughout the state without providing any binding, or even persuasive, authority is a complete misunderstanding of the purpose of Fla. Stat. §57.105 and could be considered an abuse of the Court’s limited time and resources. As stated in Whitten, Fairview and Chue, the purpose of section 57.105 is to discourage the filing of meritless claims. The Court finds that Progressive’s argument that the Plaintiff’s claim was frivolous and/or meritless lacks merit in its own right. Therefore it is,
ORDERED AND ADJUDGED that the Defendant’s motion is DENIED.
