25 Fla. L. Weekly Supp. 367a
Online Reference: FLWSUPP 2504LONYInsurance — Personal injury protection — Coverage — Medical expenses — Civil procedure — Voluntary dismissal — Notices of Withdrawal of charges for certain CPT codes — Insurer’s allegation of fraud was insufficient basis for striking provider’s motion to withdraw all charges for certain CPT codes, which notices were filed prior to plaintiff obtaining any affirmative relief — Rule 1.420 affords plaintiff the absolute right to dismiss entire claim or any part thereof so long as notice is timely served, and court cannot take into account a plaintiff’s purported motive for filing a dismissal pursuant to this rule
LAB QUEST & FAMILY CHIROPRACTIC ASSOCIATION, INC., a/s/o Silia Lony, Plaintiff, vs. SOUTHERN-OWNERS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-CC-15553-O. April 3, 2017. Eric H. DuBois, Judge. Counsel: Dave T. Sooklal, Anthony-Smith Law, P.A., Orlando, for Plaintiff. Julie Lewis Hauf, Law Offices of Julie Lewis Hauf, Winter Park, for Defendant.
ORDER ON DEFENDANT’S MOTION TO STRIKEPLAINTIFF’S MOTION TO WITHDRAW ALLCHARGES FOR CURRENT PROCEDURALTERMINOLOGY CODES 93784 AND 97016
THIS CAUSE having come before the Court on March 31, 2017, upon Defendant’s Motion to Strike Plaintiff’s Motion to Withdraw All Charges for Current Procedural Terminology Codes 93784 and 97016. As set forth below, the Court makes the following findings:
BACKGROUND
1. Plaintiff filed the instant lawsuit seeking reimbursement of Personal Injury Protection (“PIP”) benefits for treatment rendered to the Defendant’s insured, Silia Lony as a result of injuries Lony suffered in a motor vehicle accident.
2. Subsequent to filing the lawsuit Plaintiff filed the following two Notices of Withdrawal pursuant to Fla. R. Civ. P. 1.420 asserting that the following “Current Procedural Terminology” (“CPT”) codes are no longer at issue in this litigation:
a. On August 13, 2015, Plaintiff file a Notice of Withdrawal for CPT code 93784; and,
b. On January 22, 2016, Plaintiff filed a Notice of Withdrawal of CPT code 97016.
3. Thereafter, a hearing was held on Plaintiff’s Motion for Entry of Partial Summary Judgment on January 25, 2016, and an Order was entered granting the same on May 5, 2016.
4. Defendant’s instant Motion requests that this Court strike the above Notices of Withdrawal pursuant to Fla. R. Civ. P. 1.540.
ARGUMENT BY THE PARTIES
5. Defendant’s Motion requests that this Court strike Plaintiff’s Notices of Withdrawal pursuant to Fla. R. Civ. P. 1.540. In support, Defendant contends that the Notices of Withdrawal were done for no other purpose than to conceal fraudulent conduct and Plaintiff obtained affirmative relief as a result thereof.1
6. In opposition, Plaintiff contends that Fla. R. Civ. P. 1.420 affords Plaintiff the absolute right to dismiss its entire claim or any part thereof. See Fla. R. Civ. P. 1.420; See also Pino v. Bank of N.Y., 121 So. 3d 23, at 31 (Fla. 2013) [38 Fla. L. Weekly S78a] (holding that a Plaintiff’s right to take a voluntary dismissal is absolute and a trial court has no authority or discretion to deny the voluntary dismissal which is effective upon service); Serv. Experts, LLC v. Northside Air Conditioning & Elec. Serv., 56 So. 3d 26, (Fla. 2d DCA. 2010) [35 Fla. L. Weekly D2512a];
7. Plaintiff also argues that this Court lacks jurisdiction pursuant to Fla. R. Civ. P. 1.540 to set aside its Notices of Withdrawal for the following reasons:
a. This case is not final which is a prerequisite to invoking Fla. R. Civ. P. 1.540. See Pino, 121 So. 3d at 33;
b. Defendant’s argument that this Court imply fraudulent conduct as a result of Plaintiff’s Notices of Withdrawals is improper as the Florida Supreme Court has strictly prohibited the same. See Pino, 121 So. 3d at 32 (holding that a court cannot take into account a plaintiff’s motive in filing a dismissal pursuant to Fla. R. Civ. P. 1.420);
c. Defendant has failed to identify any adverse impact2 it has suffered as a result of the Notices of Withdrawal since the effect of the Notices actually benefitted Defendant because Plaintiff no longer sought reimbursement for CPT codes 93784 and 97016 from Defendant in this action; and,
d. Defendant has failed to establish the following two prong jurisdictional requirement for invoking Rule 1.5403: 1) that Plaintiff utilized its Notices of Withdrawals to perpetuate fraud; and, 2) that the Plaintiff fraudulently secured “affirmative relief” before filing its notices.
FINDINGS AND CONCLUSIONS OF LAW
8. Rule 1.540 states in pertinent part, “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding. . .” See Fla. R. Civ. P. 1.540.
9. The Florida Supreme Court has held that a party can only invoke Rule 1.540 where the cause has become final. Pino 121 So. 3d at 33 (Fla. 2013).
10. In addition, the Supreme Court also held the following in Pino:
a. An allegation of fraud is insufficient to strike a notice a voluntary dismissal which was served pursuant to Rule 1.420, to reinstate the dismissed action in order to then again dismiss with same with prejudice. See Pino, 121 So. 3d at 33;
b. A plaintiff’s right to take a voluntary dismissal pursuant to Fla. R. Civ. P. 1.420 instantaneously divests the court of its jurisdiction; is absolute so long as the notice is served any time prior a hearing on a motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury or before submission of a nonjury case to the court; and, the trial court has no authority or discretion to deny the voluntary dismissal. See Pino, 121 So. 3d at 31 – 32.
c. A trial court cannot strike a notice of dismissal where there was no affirmative relief obtained prior to the filling of the dismissal. See Pino, 121 So. 3d at 26;
d. A court cannot take into account a plaintiff’s purported motive for filing a dismissal pursuant to Fla. R. Civ. P. 1.420. See Pino, 121 So. 3d at 32;
e. A party seeking relief under Rule 1.540 must meet the following two prong jurisdictional requirement:
i. that Plaintiff utilized its Notices of Withdrawals to perpetuate fraud; and,
ii. that the Plaintiff fraudulently secured “affirmative relief” before filing its notices. See Pino, 121 So. 3d at 37.
11. This case is not final as litigation is ongoing, thus Defendant’s request to invoke Rule 1.540 is improper. See Fla. R. Civ. P. 1.540; See also Pino 121 So. 3d at 33 (Fla. 2013).
12. Moreover, the facts of Pino are similar to this case, as the Defendant has alleged fraud as the basis for its request to strike Plaintiff’s Notices, which was the exact basis alleged by Pino in support of its request that the notice of dismissal in Pino case be stricken. However, the Florida Supreme Court held that the allegation of fraud was insufficient to strike a notice of dismissal filed pursuant to Fla. R. Civ. P. 1.420.
13. Also, it is undisputed that Plaintiff filed the instant Notices prior to any hearing on a motion for summary judgment being heard, thus Plaintiff did not obtain any affirmative relief prior to the filing of the Notices.
14. Accordingly, this Court cannot strike Plaintiff’s Notices filed pursuant to Rule 1.420 as the filing of the same were timely, thus Plaintiff had an absolute right to file the same, and this Court has no jurisdiction to strike the Notices.
15. Furthermore, Defendant has failed to establish the requisite elements to invoke Rule 1.540 to strike Plaintiff’s Notices as Defendant has failed to establish, and it is undisputed that Plaintiff did not obtain affirmative relief prior to filing the Notices.
16. In such a situation, this Court must deny Defendant’s request pursuant to Rule 1.540 to strike Plaintiff’s notices filed pursuant to Rule 1.420.
17. Accordingly, it is ORDERED AND ADJUDGED, that Defendant’s Motion To Strike Plaintiff’s Motion To Withdraw All Charges For Current Procedural Terminology Codes 93784 And 97016 DENIED.
__________________
1See Defendant’s Motion to Strike Plaintiff’s Motion to Withdraw all Charges for Current Procedural Terminology Codes 93784 and 97016, filed with this Court on June 13, 2016 at pgs. 5-7.
2The Florida Supreme Court explained that where the alleged fraudulent conduct does not lead to the plaintiff obtaining affirmative relief to the detriment of the defendant there can necessarily be no adverse impact. See Pino, 121 So. 3d at 39.
3See Pino, 121 So. 3d at 37.
