9 Fla. L. Weekly Supp. 590a
Insurance — Personal injury protection — Attorney’s fees — Appellate fees — Justiciable issues — Where after underlying PIP action had been stayed by agreement of the parties pending resolution of insurer’s motion to disqualify medical provider’s counsel for alleged violations of rules of professional conduct, insurer filed separate suit against medical provider’s attorney and her law firm in another circuit for temporary and permanent injunctive relief based on alleged rule violations and filed motion to stay its own motion to disqualify medical provider’s counsel in PIP suit based on suit for injunctive relief; and where insurer filed petition for writ of certiorari when motion to stay was denied, medical provider is entitled to an award of appellate attorney’s fees and costs because petition for writ of certiorari was not a correct procedural remedy for insurer, and insurer and its counsel knew or should have known that petition was not supported by the facts or by an application of then existing law
ALLSTATE INSURANCE COMPANY, Petitioner, vs. TITUSVILLE TOTAL HEALTHCARE AS ASSIGNEE OF CAROL RABAULT, Respondent. Circuit Court, 18th Judicial Circuit (Appellate) in and for Brevard County. Case No. 2002-AP-5854. L.T. Case No. 05-2001-SC-063360. July 19, 2002. John Dean Moxley, Jr., Judge. Counsel: Kimberly P. Simoes, Susan W. Tolbert, P.L., Daytona Beach. Joseph G. Murasko, West Palm Beach. Greg Victor, Miami.
ORDER ON RESPONDENT’ S MOTIONFOR ATTORNEY FEES
THIS CAUSE having came before the Court for consideration of Respondent’s Motion for Attorney Fees and the Court having heard arguments of counsel and being otherwise fully advised; the Court makes the following findings upon which it enters this Order granting Respondent’s Motion for Attorney Fees.
On November 1, 2001 Titusville Total Healthcare filed a lawsuit against Allstate Insurance Company (hereinafter “Allstate”) for Personal Injury Protection benefits. On March 5, 2002, Allstate filed a formal Motion to Disqualify Plaintiff’s counsel, Kimberly P. Simoes, Esq. alleging Ms. Simoes, a prior Allstate staff counsel attorney, was acting in violation of Florida Rules of Professional Conduct 4-1.6, 4-1.9, and 4-1.10. The parties agreed to the entry of an order staying the underlying case for Personal Injury Protection benefits pending resolution of the motion to disqualify.
On March 19, 2002, after moving to disqualify attorney Simoes in the instant action, Allstate filed a separate and independent lawsuit against Ms. Simoes and her law firm in the Circuit Court of Orange County, Florida for temporary and permanent injunctive relief based upon the alleged violations of the Rules of Professional Conduct. On March 27, 2002, Allstate filed it’s Motion to Stay Disqualification Proceedings, attempting to utilize the Orange County action as a basis to stay disqualification proceedings filed in this suit for personal injury protection benefits. The Motion to Stay Disqualification proceedings was denied by the trial court and Allstate filed the Petition for Writ of Certiorari which is the subject matter of this Order.
This Court Denied Allstate’s Petition on May 3, 2002. On July 11, 2002, a hearing was held regarding Respondent, Titusville Total Healthcare’s, entitlement to recovery of attorney fees for the time spent addressing the Petition for Writ of Certiorari.
Florida Statute Sec. 57.105, which became effective on October 1, 1999, is applicable to the instant case. Florida Statute Sec. 57.105 provides, inter alia,
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee 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.
The standard for application of Sec. 57.105 sanctions is no longer “a complete absence of justicable law or fact.” The operative standard is whether the losing party or the losing party’s counsel knew or should have known that the claim or defense asserted was not supported by the material facts necessary to establish the claim or defense or would not be not supported by the application of then existing law to those material facts.
The cases cited by Allstate addressing the staying of one action pending the outcome of another action are not applicable to the facts of this case. In the cases cited, it is the actual underlying cause of action that one party is seeking to stay due to another pending action which would resolve the underlying litigation. That is not the case here. In the instant matter, the Order denying stay which resulted in Allstate’s filing of the Petition for Writ of Certiorari was not an order denying stay of the underlying action (i.e. the PIP action). In fact, the underlying action had already been stayed by an Order entered by agreement of the parties.
The court finds that the Petition for Writ of Certiorari was not a correct procedural remedy for Allstate. The Petition for Writ of Certiorari was premised upon the trial court’s denial of Allstate’s motion to stay Allstate’s own motion to disqualify. Allstate and Allstate’s counsel knew or should have known that the Petition for Writ of Certiorari filed herein was not supported by the facts or by an application of the then existing law. Based upon the facts contained herein, the Respondent is entitled to an award of attorney fees and costs pursuant to Florida Statute Sec. 57.105. It is therefore,
ORDERED and ADJUDGED that
Respondent’s Motion for Attorney Fees is GRANTED, to be paid by Allstate Insurance Company. It is further Ordered that the matter is hereby remanded to the lower tribunal for a determination of the amount of reasonable attorney fees and costs for the appeal.
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