27 Fla. L. Weekly Supp. 309a
Online Reference: FLWSUPP 2703HERNInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Insurer entitled to attorney’s fees pursuant to section 57.105(1) where presuit demand letter did not strictly comply with statute, and plaintiff’s attorney knew or should have known that demand letter was defective and failed to satisfy condition precedent to filing suit — Demand letter did not strictly comply with statute where letter failed to account for prior partial payment made by insurer — Costs — Insurer also entitled to taxable costs pursuant to rule 1.420(d) where plaintiff voluntarily dismissed claim — Waiver — Insurer did not waive its defense pertaining to plaintiff’s failure to strictly comply with presuit notice requirements by failing to raise the issue presuit where insurer raised affirmative defense of a defective demand letter in its answer and subsequent motions — Affirmative defense was sufficiently specific to put plaintiff on notice
WATERS MEDICAL REHAB, INC., a Florida Corporation, a/a/o Hernandez, Gabriella, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-022716 (L). December 17, 2018. On Motion for Reconsideration April 26, 2019. Cynthia Oster, Judge. Counsel: William Moon and David Hwalek, Florida Advocates, Dania Beach, for Plaintiff. Roy Kielich, Oxendine & Oxendine, P.A., Tampa, for Defendant.
[Order on Motion for Reconsideration published below.]
ORDER GRANTING DEFENDANT’S MOTION TO TAXATTORNEYS’ FEES AND COSTS, AND GRANTINGDEFENDANT’S MOTION TO TAX ATTORNEYS’ FEESAND COSTS PURSUANT TO FLORIDA STATUTE § 57.105
THIS CAUSE came before the Court on December 03, 2018 upon the Defendant’s Motion to Tax Attorneys’ Fees and Costs, filed on July 31, 2017, and Defendant’s Motion to Tax Attorneys’ Fees and Costs Pursuant to Florida Statute § 57.105, filed on July 10, 2017. Having reviewed the file, having heard arguments from counsel, and being otherwise fully advised in the premises, the Court finds as follows:
1. The Plaintiff has brought the above-styled cause of action seeking allegedly overdue/unpaid PIP benefits due to an automobile accident on November 28, 2015. The Plaintiff’s Complaint alleges one count for declaratory relief and one count for breach of contract.
2. On January 19, 2017, the Defendant filed a Motion for Partial Summary Judgment, as to Count II of the Complaint, alleging that the Plaintiff’s pre-suit demand letter failed to strictly comply with the requirements of Florida Statute § 627.736(10). On that date, the Defendant also served Plaintiff with a then unfiled “Motion to Tax Attorneys’ Fees and Costs Pursuant to Florida Statute § 57.105,” along with a Florida Statute § 57.105(4) twenty-one (21) day letter giving the Plaintiff an opportunity to dismiss its Complaint within the statutory safe harbor period.
3. In its Florida Statute § 57.105(4) letter, the Defendant indicated that Plaintiff’s demand letter did not comply with Florida Statute § 627.736(10), a condition precedent to bringing the breach of contract action. Additionally, the Defendant’s then-unfiled Motion detailed the specific defect in the demand letter (specifically, that the demand letter failed to account for prior partial payments made by the insurer) and the state of the law on non-compliance with Florida Statute § 627.736(10).
4. On July 10, 2017, the Defendant filed the “Motion to Tax Attorneys’ Fees and Costs Pursuant to Florida Statute § 57.105” with the Court, as the Plaintiff had failed to dismiss its action within the twenty-one (21) day safe harbor period. Subsequently, on July 31, 2017, the Plaintiff filed a Notice of Voluntary Dismissal without Prejudice in this matter.
5. The Court finds that the Defendant properly served and timely filed its “Motion to Tax Attorneys’ Fees and Costs Pursuant to Florida Statute § 57.105” in accordance with Fla. R. Jud. Admin. 2.516 (2016) and Florida Statute § 57.105(4) (2017). See cf. Isla Blue Dev., LLC v. Moore, 223 So. 3d 1097 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1355e].
6. Florida Statute Section 57.105(1) provides:
Upon the court’s initiative or motion of any party, the court shall 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.
7. With regard to pre-suit demand letters, Florida Statute § 627.736(10) provides in pertinent part:
(10) Demand letter. —
(a) As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice must state that it is a “demand letter under s. 627.736” and state with specificity:
( . . . )
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services . . . that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due . . .
(Emphasis added)
8. The Thirteenth Judicial Circuit Court, in its appellate capacity, has ruled on the issue of specificity with respect to demand letters required under section 627.736(10). Specifically, in Chambers Medical Group, Inc. v. Progressive Express Insurance Company, the Court held that a medical provider must strictly comply with the requirements of section 627.736(10). 14 Fla. L. Weekly Supp. 207a (Fla. 13th Cir. Ct. (App.), Dec. 1, 2006). The Chambers court concluded that “strict compliance with the notice requirements is required to effect the purpose of the statute.” Id. Further, the Court held that “[i]naccurate, misleading, illegible or stale information contained in a demand does not strictly comply with the statutory requirements,” and that the “mere attachment of claim firms setting forth the amount of the original claim, where partial payments are not reflected on the form or elsewhere in the demand, does not set forth the ‘exact amount claimed to be due.’ ” Id. (emphasis added) (internal citations omitted).
9. This Court is bound by the decision in Chambers and is required to apply the strict compliance standard with regard to pre-suit demand letters under section 627.736(10).
10. The Court finds that Plaintiff’s demand letter does not comply with the strict compliance standard set forth in Chambers and does not satisfy the condition precedent to suit set forth in section 627.736(10).
11. It is undisputed that the Plaintiff’s pre-suit demand letter, which demanded a total of $2,138.33 for service dates from December 4, 2015 through March 11, 2016, failed to account for a prior partial payment made by the insurer in the amount of $379.46 to the Plaintiff’s facility for the service date range at issue. As such, the demand letter with the enclosed ledger did not provide proper notice of the amount sought, was inaccurate and misleading, and therefore, did not strictly comply with the requirements of section 627.736(10).
12. The Court finds that the Plaintiff and/or the Plaintiff’s attorney knew or should have known that the pre-suit demand letter in this matter was defective and, as such, a condition precedent to instituting this lawsuit had not been met.
13. As such, the Court finds the Defendant is entitled to attorney’s fees pursuant to Florida Statutes section 57.105(1).
14. Additionally, because the Plaintiff dismissed this action pursuant to Florida Rule of Civil Procedure 1.420(a)(1), Defendant is entitled to its taxable costs pursuant to Florida Rule of Civil Procedure 1.420(d).
It is therefore ORDERED AND ADJUDGED that the Defendant’s Motion to Tax Attorneys’ Fees and Costs, filed on July 31, 2017, and Defendant’s Motion to Tax Attorneys’ Fees and Costs Pursuant to Florida Statute § 57.105, filed on July 10, 2017 are GRANTED as to entitlement to an award of attorneys’ fees and costs in this matter. This Court reserves jurisdiction to determine the amount and allocation of the award of attorneys’ fees and costs to be awarded.
__________________ORDER DENYING PLAINTIFF’S MOTION FORRECONSIDERATION OF THE COURT’SGRANTING DEFENDANT’S MOTIONTO TAX ATTORNEYS’ FEES AND COSTS
THIS CAUSE came before the Court on April 08, 20198 upon the Plaintiff’s Motion for Reconsideration of the Court’s Granting Defendant’s Motion to Tax Attorneys’ Fees and Costs. Having reviewed the file, having heard arguments from counsel, and being otherwise fully advised in the premises, the Court finds as follows:
1. The Plaintiff has brought the above-styled cause of action seeking allegedly overdue/unpaid PIP benefits due to an automobile accident on November 28, 2015. The Plaintiff’s Complaint alleges one count for declaratory relief and one count for breach of contract.
2. On January 19, 2017, the Defendant filed a Motion for Partial Summary Judgment, as to Count II of the Complaint, alleging that the Plaintiff’s pre-suit demand letter failed to strictly comply with the requirements of Florida Statute § 627.736(10). On that date, the Defendant also served Plaintiff with a then unified “Motion to Tax Attorneys’ Fees and Costs Pursuant to Florida Statute § 57.105,” along with a Florida Statute § 57.105(4) twenty-one (21) day letter giving the Plaintiff an opportunity to dismiss its Complaint within the statutory safe harbor period.
3. On July 10, 2017, the Defendant filed the “Motion to Tax Attorneys’ Fees and Costs Pursuant to Florida Statute § 57.105” with the Court, as the Plaintiff had failed to dismiss its action within the twenty-one (21) day safe harbor period. Subsequently, on July 31, 2017, the Plaintiff filed a Notice of Voluntary Dismissal without Prejudice in this matter.
4. On December 17, 2018, this Court issued an order granting the Defendant’s Motion to Tax Attorneys’ Fees pursuant to Florida Statute § 57.105, holding that Plaintiff’s demand letter does not comply with the strict compliance standard set forth in Chambers Medical Group, Inc. v. Progressive Express Insurance Company and therefore does not satisfy the condition precedent to suit set forth in Florida Statute Section 627.736(10). 14 Fla. L. Weekly Supp. 207a (Fla. 13th Cir. Ct. (App.), Dec. 1, 2006).
5. While it is well established that a trial court has the inherent authority to reconsider and modify its interlocutory orders at any time before final judgment is entered, a motion for rehearing should not be granted where the basis for the motion is the reweighing of evidence already presented to the trial court. See Stewart Bonded Warehouse, Inc. v. Bevis, 294 So. 2d 315, 317 (Fla. 1974). As such, this Court declines to reconsider its prior ruling that Plaintiff’s demand letter did not strictly comply with Florida Statute § 627.736(10), a condition precedent to bringing the breach of contract action, as this issue was extensively argued and addressed at the hearing on Defendant’s Motion to Tax Attorneys’ Fees and Costs which was conducted on December 03, 2018.
6. However, the Plaintiff raises two new issues in its Motion for Reconsideration which were not raised at the December 03, 2018 hearing on Defendant’s Motion to Tax Attorneys’ Fees and Costs. Specifically, the Plaintiff argues that (1) the Defendant waived its defense regarding the invalidity of the pre-suit demand letter by its failure to raise that issue pre-suit, and (2) that the Defendant waived its defense regarding the invalidity of the pre-suit demand because the Defendant’s First Affirmative Defense was not pled with sufficient specificity or particularity regarding the specific alleged defects of the pre-suit demand letter. This Court is not persuaded by either argument.
7. With regard to the argument that the Defendant waived its defense regarding the invalidity of the pre-suit demand letter by its failure to raise that issue pre-suit, the Plaintiff failed to provide any record evidence to support the argument that the Defendant waived this defense by virtue of its pre-suit actions. While the Plaintiff has provided a number of county court cases throughout the State of Florida with conflicting rulings on this issue, there is a substantial body of case law holding that the defense of a provider’s failure to comply with the statutory pre-suit notice requirements is not waived where the insurer raised the affirmative defense of a defective demand letter in its answer. Alliance Spine & Joint I, Inc. a/a/o Paul Volcy v. USA Cas. Ins. Co., 24 Fla. L. Weekly Supp. 555c (Fla. 11th Jud. Cir., Miami-Dade Cty. Ct., Sept. 13, 2016); Robert J. Indelicato, DC a/a/o Ruby Kish v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 184b; First Health Chiro. a/a/o Sheila Gholami v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 484a (Fla. 9th Jud. Cir., Orange Cty. Ct., Oct. 25, 2010); see also State Farm Mut. Auto. Ins. Co. v. Douglas Diagnostic Ctr., Inc. a/a/o Jainek Perez, 25 Fla. L. Weekly Supp. 942b (Fla. 17th Jud. Cir. (App.), Dec. 18, 2017) (holding that the trial court erred in ruling that the insurer waived its right to challenge the pre-suit demand letter where State Farm “continued to assert the defense in its answer, subsequent motions, pretrial conference, and summary judgment.”).
8. “Waiver is ‘the intentional relinquishment of a known right.’ ” Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2227a]. In this case, there is no record evidence to suggest that the Defendant intended to relinquish its right to raise the invalidity of the pre-suit demand letter as an affirmative defense, as this issue was raised as the Defendant’s First Affirmative Defense in its answer and was raised in subsequent motions.
9. In this case, the Defendant’s First Affirmative Defense reads that “Defendant denies compliance with conditions precedent to filing suit in this action because Plaintiff has failed to comply with Florida Statute §627.736(10). To the extent that suit is for any medical payments coverage, Plaintiff has failed to comply with the insurance policy contract provision requiring pre-suit notice of intent to initiate litigation.” The Plaintiff argues that this language was not sufficiently specific to properly plead any failed condition precedent.
10. However, this exact issue was discussed in the case of Robert J. Indelicato, DC a/a/o Ruby Kish v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 184b (Fla. 12th Jud. Cir., Manatee Cty. Ct., Oct. 30, 2013), in which the language of the Defendant’s Ninth Affirmative Defense was verbatim to the Defendant’s First Affirmative Defense in the instant case. In the Indelicato case, the Court ruled that the language of this affirmative defense was “specific and contained sufficient particularity to place Plaintiff and the Court on notice of its defense of failure of Plaintiff to comply with Presuit notice requirements.” This Court agrees with this analysis and holds that this affirmative defense was sufficiently specific to put the Plaintiff on notice of the defense of the failure of the pre-suit demand letter to comply with Florida Statute §627.736(10). As noted above, at no time in this case did the Defendant waive its defense pertaining to the failure of the Plaintiff to strictly comply with the pre-suit notice requirements.
It is therefore ORDERED AND ADJUDGED that the Plaintiff’s Motion for Reconsideration of the Court’s Granting Defendant’s Motion to Tax Attorneys’ Fees and Costs is DENIED. This Court reserves jurisdiction to determine the amount and allocation of the award of attorneys’ fees and costs to be awarded to the Defendant.
