27 Fla. L. Weekly Supp. 906a
Online Reference: FLWSUPP 2710MARSInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Safe harbor period — Argument that, under mailbox rule, medical provider had additional five days beyond safe harbor period of section 57.105 to dismiss action is without merit
JAMES D. SHORTT, M.D., P.A. a/a/o Leila Marshall, Plaintiff, v. HARTFORD UNDERWRITERS INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2014 SC 004296 NC. November 18, 2019. Dana M. Moss, Judge. Counsel: Chad Christensen, Ged Lawyers, Boca Raton, for Plaintiff. Robert M. Pickett Jr., Law Offices of Jason L. Weissman, Hollywood, for Defendant.
ORDER GRANTING DEFENDANT’S ENTITLEMENT TO§ 57.105, FLA. STAT. ATTORNEYS’ FEES
This cause came before this Court on October 10, 2019, on Defendant’s Fla. Stat. § 57.105 Motion for Fees and Costs. The Court, having heard argument of counsel and being otherwise fully advised in the premises, makes the following findings and conclusions:
1. On or about January 9, 2013, JAMES D. SHORTT, M.D., P.A. (“Plaintiff”) filed a breach of contract action for personal injury protection (“PIP”) benefits against HARTFORD UNDERWRITERS INSURANCE COMPANY (“Defendant”), Case No. 13-SC0009444, in Palm Beach County. The parties reached a full and final settlement agreement in that action and the Plaintiff dismissed the action with prejudice.
2. On or about August 14, 2014, Plaintiff filed the instant breach of contract lawsuit for PIP benefits against Defendant involving the same claimant and the same date of loss, in Sarasota County Case No. 2014-SC-4296.
3. On July 27, 2015, Defendant served upon Plaintiff a § 57.105, Fla. Stat., Motion, in which Defendant brought to Plaintiff’s attention that, “all claims related to the same health care provider for the same injured person shall be brought in one action,” per Fla. Stat. § 627.736(15), and Plaintiff had already settled the one action related to the instant injured person and health care provider.
4. The Defendant timely filed the Motion on August 17, 2015.1
5. On May 19, 2016, the Court dismissed with prejudice the subject suit.
6. The Plaintiff appealed and, on January 26, 2018, the Circuit Court affirmed the decision where Plaintiff demonstrated no good cause to file the duplicate lawsuit.
7. The Plaintiff challenged the timeliness of the Defendant filing the § 57.105, Fla. Stat., Motion, arguing the 21 days safe harbor rule under § 57.105 should be extended an additional 5 days under the “mailbox” rule.
8. The Plaintiff presented two, non-binding cases to support its argument that Fla. R. Jud. Admin. 2.514(b) applies to § 57.105(4), Fla. Stat. requiring the party seeking sanctions to file the § 57.105 Motion, Fla. Stat. twenty-one days plus an additional five (5) after service of the Motion. G&R Plumbing, Inc. (a/a/o Darryl and Frankie Le Master) and Fla. Prof. Law Group, PLLC. v. Avatar Property and Casualty Ins. Co., 26 Fla. L. Weekly Supp. 945a (Fla. 15th Cir. Ct. 2019); Moore Chiropractic Ctr., Inc. (a/a/o Corse, Jason) v. U.S. Auto. Assoc., 23 Fla. L. Weekly Supp 251a (Fla. Clay Cty. Ct. 2015).2 However, the subject case where Plaintiff never dismissed the action is distinguishable from the G&R and Moore cases where plaintiffs dismissed the frivolous lawsuits.
9. Furthermore, Plaintiff failed to submit the Wall decision ruling, “the 21 day time for action is on the party seeking sanctions not the offending party. As such, the additional 5 days set forth in Fla. R. Jud. Admin., Rule 2.514(b) is not applicable to the § 57.105(4), Fla. Stat.” Wall Healthcare, Inc. (a/a/o Thomas, James) v. Travelers Property Casualty Co. of Am., 26 Fla. L. Weekly Supp. 973a (Fla. Pinellas Cty. Ct. 2017) (citing Pomeranz & Landsman, Corp. v. Miami Marlins Baseball Club, L.P., 143 So.3d 1182 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1704b].
Wherefore, it is,
ORDERED AND ADJUDGED that the Defendant’s Motion for Entitlement to Attorneys’ Fees is GRANTED.
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1Florida Supreme Court amended R. Jud Admin. 2.514(a)(1)(A), calculating time frames beginning from the next day following the event that triggers, became effective January 1, 2019. e.g., In re Amendments to the Fla. R. Civ. P., No. SC17-882 (Fla. Oct. 25, 2018) [43 Fla. L. Weekly S515a].
2Also note Florida Supreme Court amended Fla. R. Jud. Admin. 2.514 “to no longer allow parties an additional five days to respond following service of a document by email. . . E-mail, unlike postal mail, is now nearly instantaneous and no additional time should be permitted for responses to documents served by email.” Id.
