9 Fla. L. Weekly Supp. 637a
Insurance — Attorney’s fees — Proposal for settlement — Medical provider which filed voluntary dismissal eight months after expiration of insurer’s proposal for settlement was liable for insurer’s attorney’s fees and costs — Insurer did not have duty to plead entitlement to attorney’s fees under section 57.105 before case was ended — Medical provider’s action was brought in bad faith where provider’s corporate status was cancelled seven years prior to suit and, thus, provider is non-existent entity without legal capacity to bring, maintain or defend any action in any court of state
MEDICAL DIAGNOSTIC & THERAPY, INC., Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01000327 COCE 54. July 18, 2002. Zebedee W. Wright, Judge. Counsel: Bob Zwicky, for Plaintiff. Brenda Fam, Gregory J. Willis & Associates, Fort Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKEDEFENDANT’S MOTION TO DETERMINEENTITLEMENT TO ATTORNEY FEESandGRANTING DEFENDANT’S MOTION TOENTITLEMENT TO ATTORNEY FEES AND COSTS
THIS CAUSE having come before the Court and after hearing argument, reviewing the record, and having been advised that, Plaintiff’s Motion to Strike Defendant’s Motion to Determine Entitlement to Attorney Fees is DENIED and Defendant’s Motion for Entitlement to Attorney Fees and Costs is GRANTED and it is hereby adjudged as follows:
Plaintiff filed a Voluntary Dismissal of this action on March 15, 2002, eight months after the expiration of Defendant’s second proposal for settlement, and contends that since the case was dismissed without prejudice there is no entitlement to attorney fees under 57.105, FRCP 1.442,1 FRCP 1.525 and FS 768.79.2
There is no “safe harbor” in which a litigant might avoid being sanctioned by simply withdrawing an action within a certain period of time under FS 57.105. (Citing to Florida Bar Journal April 2002, filed in record by Plaintiff’s counsel.) Florida courts interpret a statute so as to effectuate its purpose. The Courts avoid any construction which would impair, nullify, or defeat the result intended or one that would produce an unreasonable, absurd or ridiculous consequence. See Mcellan v. State Farm Mutual Automobile Insurance Company, 366 So.2d 811 (Fla. 4th DCA 1979). If a Plaintiff, at anytime, may escape liability for attorney fees by merely filing a notice of voluntary dismissal there is effectively no provisions for providing reimbursement to a Defendant for its fees, when a claim is without merit or when the Plaintiff unreasonably refuses to settle. Plaintiff’s argument removes the incentive to evaluate the merits of the claim, the incentive to expedite a dismissal within thirty days of the offer, and the incentive to consider and accept the proposed settlement. An underlying purpose for these statutes is to limit the waste of resources, both judicial and financial.3 To accept Plaintiff’s argument would effectively nullify the effectiveness of the aforementioned statutes.
Further, the Court finds against the Plaintiff, and holds that a Defendant does not have a duty to plead entitlement to attorney fees under FS 57.105 before a case is ended. See Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992). Autorico, Inc. v. Government Employees Insurance Co., 398 So. 2d 485, 487-88 (Fla. 3d DCA 1981). A motion for attorney fees requires consideration of factors distinct from the issues decided on the merits of the cause of action. See Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). A post-judgment motion for attorney’s fees raises a `collateral and independent claim’ which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality.” See Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla. 1986).
Unlike the prior version of § 57.105, the new statute effective October 1, 1999, applies to any claim and it may be raised at any time — even by the court sua sponte. Unlike its predecessor, the new § 57.105 contains a “knew or should have known” standard and fees and sanctions for asserting a position that does not find substantial support in both fact and law. The Court is required to impose sanctions for any claim that the losing party knew or should have known that the claim was not supported by the facts or law necessary to establish its viability. Id., at Florida Bar Journal April 2002. Medical Diagnostic & Therapy Inc., affirmatively alleged in their complaint that “That at all times, they were a medical facility duly licensed to transact business in the State of Florida. . .” and “That at all times material hereto, Plaintiff, was transacting business in Broward County, Florida. . .”4 Unfair or deceptive acts or practices in the conduct of any trade are unlawful. FS. 501.24.5
FS 607.1622(8) provides that “Any corporation failing to file an annual report which complies with the requirements of this section shall not be permitted to maintain or defend any action in any court of this state until such report is filed and all fees and taxes due under this act are paid and shall be subject to dissolution and cancellation of its certificate of authority to do business as provided in this act.”
Pursuant to the records of the State of Florida,6 Medical Diagnostic & Therapy failed to pay the initial filing fees, was cancelled and administratively dissolved January 5th 1994.7 Medical Diagnostic and Therapy Inc. was not a domestic or foreign corporation licensed and lawfully able to engage in ongoing business in the State of Florida as their corporate status was cancelled and non-existent. Medical Diagnostic & Therapy Inc., a non-existent entity, filed this lawsuit seven years after cancellation and made a claim for treatment rendered six and one-half years after cancellation.8 Plaintiff’s action was brought in bad faith as seven years after cancellation the Plaintiff was/and remains a non-existent entity, without legal capacity to conduct business in this state, and is precluded by statute from bringing, maintaining, or defending any action in any court of this state pursuant to FS 607.1622.
Plaintiff is precluded from asserting that the Defendant’s motion is defective and waived any assertion that Defendant’s motion is defective9. See FS 607.1622. Plaintiff did acquiesce to the Defendant’s Motion to Entitlement and filed a Motion to Compel the attendance of witnesses at the hearing for entitlement, Plaintiff did not notice their Motion to Strike for motion calendar prior to the hearing on entitlement,10 and Plaintiff actively engaged in discovery and sought items in reference to the evidence to be presented at the hearing on entitlement. Plaintiff propounded requests for production of the items that the Defendant intended to use to support their Motion to Determine Entitlement to Attorney Fees11. Plaintiff, subsequently of their own accord, elected to forgo the opportunity to obtain discovery and filed a notice of voluntary withdraw of the supplemental discovery requests.12
As such this Court DENIES plaintiff’s Motion to Strike and GRANTS Defendant’s Motion to Entitlement to attorney fees and holds, Plaintiff’s claim was without merit and Defendant is entitled to attorney fees pursuant to FS 57.105, the Inequitable Conduct Doctrine, FRCP 1.442, FRCP 1.525, FS 768.79, and Defendant’s Second Proposal for Settlement served upon the Plaintiff July 3, 2001.
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1Rule 1.442 Proposals for Settlement provides (g) Any party seeking sanctions pursuant to applicable Florida law, based an the failure of the proposal’s recipient to accept a proposal, shall do so by serving a motion in accordance with rule 1.525. Rule 1.525 provides that any person seeking a judgment taxing costs or attorney fees must serve a motion within 30 days after the filing of a notice of voluntary dismissal.
2The cases cited by counsel MX Investment Inc. v. Crawford, 700 So.2d 640 (Fla. 1997) is not on point and are not persuasive as they address the 1991 version of FS 768.79 and Rule 1.420.
3The record reflects that the Plaintiff continued to actively litigate the case and filed a Motion for Summary Judgment, propounded supplemental discovery, and set Defendant’s corporate representative for deposition after expiration of the Proposal for Settlement. In addition there have been hearings attended, discovery propounded by the Plaintiff, and approximately seven motions and objections filed by Plaintiff in reference to Defendant’s Entitlement to Attorney Fees, generated subsequent to the Plaintiff filing their notice of voluntary dismissal.
4See Plaintiff’s complaint allegation 5 and 3.
5A party litigant is bound by the allegations of their pleadings and the admissions contained in the pleadings. Plaintiff concedes in allegation 3 of the Complaint “That at all times material hereto they were transacting business in Broward County Florida.” Hart Properties Inc. v. Slack, 159 So.2d 236 (Fla. 1964).
6The records from the Department of State are self-authenticating. See 90.902(1)(a), (b)(2), and (4) and Judicially Noticed.
7Record See Certificate Florida Department of State, February 12, 2002 and attachments from Florida Department of State, including correspondence advising Plaintiff of cancellation December 1, 1993 and January 4, 1994.
8Involuntary Dissolution is defined as the termination of a corporation administratively (for failure to file reports or pay taxes), . . . Blacks Law Dictionary, Seventh Edition.
9The legislature has not establish the exact procedure to be followed in making a motion under the new 57.105 statute and the Supreme Court has yet to speak to this issue. Id. at Fla. Bar Journal April 2002.
10Record Plaintiff’s Motion to Compel Attendance of Witness at Hearing, Certificate of Service May 24, 2002, Notice of Withdrawal Supplemental Request to Produce, Supplemental Interrogatories and Request to shorten time, Certificate of Service Date June 10, 2002. Further, the witness sought to be compelled by the Plaintiff did appear.
11Record. Plaintiff’s Supplemental Request to Produce and Supplemental Interrogatories Certificate of Service date May 23, 2002.
12To grant Plaintiff’s Motion to Strike at the eleventh hour wastes judicial time and economy as the Defendant is not foreclosed from proceeding with their claim for entitlement to attorney fees and may file an amended motion, however, this would require the attendance of the litigants at yet another hearing.
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