28 Fla. L. Weekly Supp. 429a
Online Reference: FLWSUPP 2805ALTAInsurance — Personal injury protection — Affirmative defenses — Amendment — Dilatoriness — Sanctions — Where insurer failed to notify medical provider of pre-suit exhaustion of policy limits until it filed motion to amend affirmative defenses to raise that issue over a year after suit was filed, insurer is granted leave to amend its affirmative defenses but is ordered to pay attorney’s fees and costs that provider incurred as result of insurer’s dilatory conduct
GADY ABRAMSON, DC, P.A., Plaintiff, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a/a/o Sviatlana Altarifi, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE18007405, Division 82. June 29, 2020. Natasha DePrimo, Judge. Counsel: Abdul-Sumi Dalal, Johnson | Dalal, Plantation, for Plaintiff. Jacob Berger, Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR LEAVETO AMEND ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE came to be considered on: DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER AND AFFIRMATIVE DEFENSES AND PLAINTIFF’S ORE-TENUS MOTION FOR SANCTIONS, and for ENTITLEMENT AS TO ATTORNEY’S FEES AND COSTS. IT IS HEREBY ORDERED AND ADJUDGED:
1. Defendant’s Motion for Leave to Amend is GRANTED.
2. Plaintiff’s Ore-Tenus Motion for Sanctions is hereby GRANTED. On July 25, 2018 suit was filed in the case at bar. Service was effectuated on the Defendant on August 01, 2018. On September 18, 2018 the Defendant served its Answer and Affirmative Defenses, listing proper payment and a defective demand letter as its sole affirmative defenses. At the time of Defendant’s Answer and Affirmative Defense, benefits of $10,000.00 had been exhausted, more specifically benefits were exhausted pre-suit. This Court finds that exhaustion should have been pled as an affirmative defense. On April 10, 2020 for the first time, Defendant notified Plaintiff of the exhaustion of benefits. The Defendant’s conduct in failing to promptly notify the Plaintiff of the exhaustion caused Plaintiff to spend attorney time and costs for which it would otherwise not have incurred had the issue of exhaustion been conveyed. The Court has inherent authority to award reasonable attorney’s fees when the dilatory conduct of a party caused precipitates the adverse party from prosecuting a claim that it otherwise would have dismissed. See Barnes v. Pro Imaging, 15 Fla. L. Weekly Supp. 981b (Fla. 17th Cir. Court 2008). The Court is aware that sanctions should be imposed sparingly. See Koch v. Koch, 47 So. 3d 320 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2091a]. However, the Court finds the unreasonable conduct of the Defendant caused an unnecessary waste of time.
Accordingly, Plaintiff is awarded and entitled to attorney time and costs through April 10, 2020, the date Defendant filed its Motion for Leave to Amend its Affirmative Defenses. The Court will hold a separate hearing as to the reasonableness of Plaintiff’s time and hourly rate sought.
