27 Fla. L. Weekly Supp. 488a
Online Reference: FLWSUPP 2705SCHOAttorney’s fees — Insurance — Claim or defense not supported by material facts or applicable law — Where medical provider persisted in suit despite being repeatedly notified by insurer of error in pursuing action in Florida court when policy clearly required submission to arbitration upon election by insurer, insurer is entitled to attorney’s fees — Insurer can collect fees under section 57.105 in case filed in Florida court irrespective of fact that case involves claim that is controlled by New Jersey policy and New Jersey law
MD NOW MEDICAL CENTERS, INC. d/b/a MD NOW a/a/o Sierra Schoenewald, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 2017-SC-013159. June 20, 2019. Marni Bryson, Judge. Counsel: Chad L. Christensen, GED LAWYERS, LLP, Boca Raton, for Plaintiff. Laura Myers-Schader, Dutton Law Group, Fort Lauderdale, for Defendant.
ORDER
THIS CAUSE having come before the Court on Defendant’s Motion for Entitlement to Attorney’s Fees and Costs Pursuant to FS 57.105 (hereinafter “57.105 Motion”) and the Court being fully advised in the premises, it is hereupon
ORDERED AND ADJUDGED that is HEREBY:
Granted. The policy at issue is a New Jersey policy. The claim is controlled by the New Jersey policy terms and the laws of the state of New Jersey. Instead of bringing this matter before the courts in New Jersey, Plaintiff choose to avail itself of the judicial system, procedures and resources of the Florida courts. Pursuant to the requirements of Florida Statute 57.105, Defendant served upon the Plaintiff a proper safe harbor letter that was at all times material hereto. Defendant’s safe harbor letter and attached 57.105 motion outlined in detail that the Plaintiff’s claim could not prevail under the New Jersey policy and New Jersey law because: 1) the Plaintiff did not produce an assignment of benefits or execute a valid New Jersey assignment of benefits pursuant to the allowable restrictions for assignments under New Jersey law; 2) Plaintiff’s bill was untimely submitted 166 days after the date of service and under New Jersey Statute 11:3-25.5 was barred from recovery; 3) Plaintiff had not complied with the mandatory internal appeals process, as required under the policy, prior to filing suit; and 4) Plaintiff had not complied with the mandatory policy terms requiring arbitration as elected by the Defendant by virtue of the submitted safe harbor letter and the requirement of New Jersey Administrative Code 11:3-5. Pursuant to the safe harbor letter and attached 57.105 Motion, Defendant had put Plaintiff on notice that it lacked the proper standing and legal basis for the instant suit.
On the same day as serving the safe harbor letter and 57.105 motion, Defendant also filed and served a Motion to Dismiss for Lack of Subject Matter Jurisdiction and attached as an exhibit a copy of the New Jersey policy which contained all the requisite language and terms by which the Plaintiff was bound. During the safe harbor period Plaintiff was in possession of sufficient documentation to evaluate its claim and dismiss with no penalty. Plaintiff, at its discretion, declined to do so. As a result, Defendant timely filed its 57.105 Motion.
On two additional occasions during the course of litigation, Defendant properly served two additional safe harbor letters and 57.105 motions again advising Plaintiff of its failure to obtain proper standing, late billing, and failure to comply with the policy terms regarding the mandatory internal appeals process and arbitration clause. Plaintiff was again provided 21 days to dismiss without penalty. On both occasions, Plaintiff declined to dismiss.
On February 12, 2019, this Court found in favor of the Defendant that it had properly elected arbitration and issued an order dismissing Plaintiffs claim and compelling the parties to arbitration in New Jersey pursuant to the terms of the policy and New Jersey law. The Court’s ruling on February 12, 2019, is in line with the basis for the Defendant’s request for dismissal under its safe harbor letter and filed 57.105 motion.
In oral arguments, counsel for the Defendant cited to Mohammed et al v. Capital One, 16 Fla. L. Weekly Supp. 822a to support its position that the court could apply Florida law regarding 57.105 fees even though the Defendant’s position all along was that New Jersey law applied. Counsel for the Defendant also cited to the Court’s sister court ruling in the matter of Mizner Place MRI v. USAA General Indemnity Company- Case no. 50-2018-SC-008423, February 26, 2019, in which the Honorable Judge Bosso-Pardo also reasoned and found that the Defendant could collect under Florida Statute 57.105 in a case filed in Florida involving an out of state policy, when a Plaintiff elects to continue to avail itself of the Florida Court system and resources even after Plaintiff has been advised that its out of state claim was not supported by the material facts necessary to establish its claim.
In this matter, similar to the Mizner Place case, Plaintiff was properly advised and repeatedly notified of its error in bringing an out of state claim that could not prevail in its home state jurisdiction, before a Florida court. In this matter, Plaintiff’s claim was found by this Court to be in violation of the New Jersey policy’s arbitration clause and New Jersey law and jurisprudence in favor of arbitration once elected by the insurer. In line with its finding this case was dismissed by the Court. Arbitration has been initiated in New Jersey regarding this matter.
As such, this Court finds that Defendant is entitled to fees since they had repeatedly notified Plaintiff of the error of pursuing this matter within the Florida courts when the policy clearly required the submission to arbitration upon election by the insurer. Despite the multiple warnings by the Defendant, Plaintiff persisted in its suit. This Court finds that the Plaintiff’s claim was not supported by the material facts or applicable law of the state of New Jersey in order to establish its claim.
Therefore, it is Considered, Ordered and Adjudged that Defendant’s motion is GRANTED as to entitlement to attorney’s fees and costs. This Court reserves jurisdiction as o determine the amount.
