25 Fla. L. Weekly Supp. 487a
Online Reference: FLWSUPP 2505OBANAttorney’s fees — Insurance — Insurer is entitled to recover section 57.105 attorney’s fees from inception of case where plaintiff and plaintiff’s attorneys knew or should have known that lawsuit was not supported by material facts necessary to establish claim when initially filed, as claimant did not receive medical treatment within 14 days of accident giving rise to claim
INJURY CENTERS OF SOUTH TAMPA, INC. (a/a/o Olga Obando), Plaintiff, vs. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-5013 COCE 53. August 14, 2017. Robert W. Lee, Judge. Counsel: Todd Landau, Hallandale Beach, for Plaintiff. David M. Massey, North Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DETERMINEENTITLEMENT TO RECOVER ATTORNEY’S FEESFROM INCEPTION OF CASE(Florida Statute §57.105)
This cause came before the Court on August 14, 2017 for hearing of the Defendant’s Motion to Determine Entitlement to Recover Attorney’s Fees from Inception of Case, and the Court’s having considered the Motion and the entire Court file; received evidence; heard argument; considered the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background.
On April 7, 2017, this Court entered its Order Granting Entitlement to Attorney’s Fees Pursuant to Defendant’s §57.105 Motion for Sanctions. In the Order, the Court found that the Defendant was the prevailing party and is “entitled to recover reasonable attorney’s fees to be paid in equal amounts by Plaintiff and Plaintiff’s attorney.” Underlying this decision was the Court’s finding that the “Plaintiff and Plaintiff’s attorneys knew or should have known that is lawsuit was not supported by the material facts necessary to establish a claim when initially filed as the claimant did not receive medical treatment within fourteen days. Plaintiff was served with Defendant’s Intent to Move for Sanctions and failed to dismiss the case within the safe harbor period.”
Unresolved at the initial hearing was the date from which attorney’s fees would be recovered. The Defendant contended that it should be from the inception of the case, while the Court surmised that it should perhaps be from the service of the date of the Defendant’s Intent to Move for Sanctions. The Court requested that the Defendant research the matter further, which resulted on July 20, 2017 in the Defendant’s filing its Motion to Determine Entitlement to Recover Attorney’s Fees from Inception of Case.
Further Findings.
Under Florida case law, the trigger date for attorney’s fees is the date on which the Plaintiff knew or should have known that its action was not supported by the material facts. Wood v. Hyack, 54 So.3d 1082, 1074 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D439b]. While the Plaintiff contends that the patient could not remember when she initially sought treatment, the only evidence available is that she initially sought treatment outside of the 14-day window. Indeed, as noted at the prior hearing on this issue, the medical records in the Plaintiff’s possession indicate on at least three different occasions that the initial treatment was not timely.
Prior to the lawsuit, GEICO rejected the bills when submitted by Plaintiff stating that there was no indication in the records that the initial treatment was sought within 14 days of the accident. The Plaintiff’s corporate representative acknowledged in deposition that Plaintiff was aware of GEICO’s position at the time the bills were rejected. The medical records in Plaintiff’s possession indicate that the Plaintiff was aware that the patient did not “receive immediate medical care.” The records also indicate that the patient, in her new patient intake form, advised the Plaintiff that she had seen no other doctors for the accident. Further, there is a physician’s report that notes that the patient acknowledged she had seen no other physician about this incident.
Subsequent to the filing of this lawsuit, the patient showed for her deposition and advised that she thought she had sought treatment from her regular general physician within a week to two weeks after the accident, directly contradicting her statement in the new patient intake form and her statement to the treating physician. This deposition was not, however, taken until January 2017, more than three years after the treatment at issue. Thereafter, the Plaintiff argues that it finally received some “proof” outside of the sanction safe harbor period that this visit was not within 14 days, and it thereupon immediately filed a voluntary dismissal.
The Plaintiff takes the position that even in the face of all the evidence against timely treatment, it reasonably believed that the records could be wrong and the patient misunderstood the treating physician’s forms and questions. At the time it filed its lawsuit, however, it simply had no evidence to support this speculation. Indeed, the Plaintiff’s position is simply contradicted by “overwhelming evidence” to the contrary. See Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 619 (Fla. 4th DCA 2016) [31 Fla. L. Weekly D1978a] (defining “frivolous” as used in the statute). Moreover, the medical records are considered an exception to the hearsay rule because they are deemed “reliable.” C. Ehrhardt, Florida Evidence §803.6a (2016 ed.). Statements made in the records which “describe medical history” are similarly deemed an exception to the hearsay rule because the patient “has a strong motivation to be truthful.” Id. §803.4. All of this evidence was known to the Plaintiff and its attorneys at the inception of the case. Therefore, the Court finds that the Plaintiff and its attorneys clearly “should have known” that the lawsuit was not supported by the material facts at the inception of the case. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion is GRANTED. Its entitlement to recover attorney’s fees runs from the inception of the case. Defendant may request that its Motion for Attorney’s Fees be set for evidentiary hearing upon delivering to opposing counsel and the Court, by way of Notice of Filing, a detailed breakdown of fees sought in the form of date, provider, description of work, time spent per entry, total time spent on case, hourly rate sought and total amount of fees sought. A hearing will not be set until this Notice of Filing is provided.
All other post-judgment discovery pertaining to either party’s time, fees and costs is hereby STAYED pending further order of the Court upon properly submitted motion.
