26 Fla. L. Weekly Supp. 32b
Online Reference: FLWSUPP 2601NZAMInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Medical provider is entitled to award of attorney’s fees for defending against affirmative defense alleging that statute of limitations on provider’s claim had expired where provider filed suit within five-year limitations period following expiration of thirty days after insurer was furnished notice of covered loss
PROFESSIONAL MEDICAL BUILDING GROUP, INC. a/a/o Niurka Zamora, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. General Jurisdiction Division. Case No. 14-1868-SP-25-1. March 1, 2018. Linda Diaz, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff.
AMENDED ORDER GRANTING PLAINTIFF’S MOTIONFOR SANCTIONS PURSUANT TO FLORIDA STATUTE 57.105
THIS CAUSE, having come before the Court on February 26, 2018, upon Plaintiff’s Motion for Sanctions Pursuant to Florida Statute 57.105, and the Court having heard argument of counsel and otherwise advised of the premises it is hereby ORDERED AND ADJUDGED as follows:
The Plaintiff filed a lawsuit for underpaid Personal Injury Protection (PIP) benefits on February 18, 2014. On April 11, 2014, the Defendant filed its Motion to Dismiss as to Count III of Plaintiff Complaint and Answer, Affirmative Defenses as to Count I and II. The Defendant by way of its Third Affirmative Defense “alleges that the statute of limitations on Plaintiff’s claim has expired and therefore any cause of action Plaintiff may have had is barred.” In response, on December 30, 2015, the Plaintiff submitted correspondence to Defendant requesting it withdraw its Third Affirmative Defense as well a Motion for Sanctions which Plaintiff intended to file with the Court should Defendant fail to withdraw said defense within 21 days. Based on Defendant’s failure to timely withdraw1 said defense, the Plaintiff filed its Motion for Sanctions with the Court.
The Plaintiff contends that the Defendant’s Third Affirmative Defense is without merit as Fla. Stat. 95.11 provides for a five (5) year statute of limitations for actions based upon written contract. Moreover, the Plaintiff contends that Fla. Stat. 627.736(4)(b) provides that “Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” In simpler terms, the breach occurs upon expiration of the thirty (30) days after the insurer is furnished written notice of the loss.
Fla. Stat. 57.105 states, in pertinent part:
Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation
(1) Upon the court’s initiative or motion of any party, the court shall2 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.
(2) [not applicable to this discussion]
(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:
(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
(b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.
Sanctions pursuant to Fla. Stat. 57.105 are to be awarded “with restraint” to ensure that it serves the purpose for which it was intended, which is to discourage baseless claims and not to cast a chilling effect on use of the courts. Swan Landing Development, LLC v. First Tennessee Bank National Association, 97 So.2d 326 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D2225a]. In the instant matter, the subject dates of service are March 3, 2009 through June 09, 2009. The Plaintiff filed suit on February 18, 2014, well within the 5 year statute of limitations. This Court finds that the Defendant knew or should have known that the Defendant’s Third Affirmative Defense was not supported by the material facts necessary to establish the defense.
As such, it is therefore ORDERED AND ADJUDGED that Plaintiff’s Motion for Sanctions Pursuant to Florida Statute 57.105 is hereby GRANTED. The Court reserves jurisdiction to determine the amount of reasonable attorney’s fees and costs to be awarded to Plaintiff.
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1The Defendant withdrew its Third Affirmative Defense on April 14, 2016, well after the expiration period set forth in Fla. Stat. 57.105. Defendant suggests that no prejudice results from the untimely withdraw of the affirmative defense, however, prejudice is not the proper standard in evaluating a Motion for Sanctions pursuant to Fla. Stat. 57.105.
2“Use of the word “shall”. . .evidences the legislative intention to impose [sanctions] once the determination has been made that there was a complete absence of a justiciable issue raised by the losing party.” Morton v. Heathcock, 913 So.2d 662 (Fla. 3rd DCA 2005) [30 Fla. L. Weekly D2163a].
