26 Fla. L. Weekly Supp. 414a
Online Reference: FLWSUPP 2605FREYInsurance — Where medical provider’s attorney filed amended petition for declaratory relief only minutes before hearing on motion to dismiss original petition, and facts indicate that primary purpose of filing amended petition was to cause unreasonable delay, insurer’s motion for sanctions is granted
HEALTH SOURCE OF BRANDON, as assignee of, Thomas Frey, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 17-CC-009377. July 2, 2018. Cynthia S. Oster, Judge. Counsel: Xavier Jackman, Tampa, for Plaintiff. William E. Kirilloff and Edwin v. Valen, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SANCTIONSDUE TO THE PLAINTIFF’S CONDUCT PRIOR TO ANDAT THE OCTOBER 30, 2017 HEARING
THIS CAUSE, having come before the Court on Defendant’s Motion for Sanctions due to the Plaintiff’s Conduct Prior to and at the October 30, 2017 Hearing and the Court having heard arguments of counsel on March 2, 2018, reviewed the transcript from the October 30, 2017 hearing, and being otherwise advised in the premises, the Court makes the following findings of fact:
1. Plaintiff filed its original Petition for Declaratory Relief on March 7, 2017.
2. On April 17, 2017, Defendant filed its first Motion to Dismiss Plaintiff’s Complaint and Incorporated Memorandum of Law (hereinafter “Motion to Dismiss”).
3. Both Defendant and Plaintiff set the hearing on Defendant’s Motion to Dismiss to occur on October 30, 2017 at 3:30 p.m. and each filed a Notice of Hearing on August 18, 2017.
4. On October 30, 2017, Plaintiff filed its Amended Petition for Declaratory Relief (hereinafter “Amended Petition”) at approximately 2:53 p.m., a little over half an hour before the heading.
5. By the time of the hearing on Defendant’s Motion to Dismiss at 3:30 p.m., Plaintiff’s Amended Petition had not been uploaded onto the Court’s docket. The Court ultimately allowed the hearing to be continued to a later date due to the Defendant’s Motion to Dismiss being directed to a now superseded pleading. The Court, however, noted that it would be willing to go forward on the Motion to Dismiss at that time since the issues that needed to be addressed had not changed by the filing of the Amended Petition.
6. Despite the fact the issues to be addressed remained the same, Plaintiff’s counsel argued that Defendant’s Motion to Dismiss was essentially mooted by the Amended Petition and that the Court no longer possessed jurisdiction to hear the Motion.
7. When asked by the Court about the last minute filing of the amended pleading, Plaintiff’s counsel articulated that he had staffing issues as an excuse.
8. When asked by the Court why, if the issues are the same, Plaintiff could not proceed with the motion hearing, Plaintiff’s counsel again articulated that he had staffing issues as an excuse for not being prepared to proceed.
9. Plaintiff’s counsel also stated that he looked at the Petition that morning in preparation for the hearing and “thought there was some further information that would be helpful in defeating the arguments of counsel. I added them in.”
10. Defendant’s counsel stated that he had prepared for the hearing the night before, taking time away from his family, and that he had come in that morning of the hearing and continued to prepare for the hearing.
11. Plaintiff’s counsel argued that he had called Defendant’s counsel that morning to let him know he would be filing an Amended Petition that day. Defendant’s counsel acknowledged that he received the call, but he decided to attend the hearing since he did not know what Plaintiff’s counsel was going to do based on past experiences, where opposing counsel did not show up or showed up at the hearing and argued completely different issues than what was discussed on the phone.
The Court further finds:
12. Plaintiff’s counsel had a period of approximately 6 months to file an Amended Petition after the Defendant filed its Motion to Dismiss, yet waited until just minutes before the afternoon hearing, which he scheduled and issued a Notice of Hearing, to file an amended pleading.
13. Plaintiff’s counsel also articulated a tactical advantage to filing the amended pleading to defeat the arguments of counsel.
14. These facts indicate a certain intentionality of purpose and resulted in a delayed hearing on the Motion to Dismiss.
15. Defendant’s counsel expended time preparing for and attending a hearing on October 30, 2017, wherein the argument on the motion ultimately did not take place.
16. Defendant’s counsel expended costs incurred to have the court reporter in attendance on October 30, 2017 to create a record of the hearing and transcribe it subsequently for purposes of supporting Defendant’s Motion for Sanctions.
17. The Court finds that, while the filing of the Amended Petition for Declaratory Relief is appropriate and accepts the amendment in deference to Boca Burger, Inc. v. Forum, 912 So. 2d 561 (2005)[30 Fla. L. Weekly S649a], it does not find the conduct of Plaintiff’s counsel to be appropriate in terms of the purposeful and deliberate timing of the filing in relation to the hearing he scheduled.
18. Therefore, the Court concludes that pursuant to Section 57.105(2), Florida Statutes, Defendant’s counsel has proven by a preponderance of the evidence that the filing of the amended Petition for Declaratory Relief just minutes before the October 30, 2017 hearing on the Motion to Dismiss was primarily taken for purpose of unreasonable delay.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Defendant’s Motion for Sanctions is hereby GRANTED. The Defendant shall recover from Plaintiff damages for its reasonable expenses incurred in obtaining this Order, to include attorney’s fees and costs in relation to the Motion to Dismiss hearing scheduled for October 30, 2017, in an amount to be determined by the Court. Defendant shall have ten (10) days from the date of this Order to file an affidavit as to attorney’s fees and costs expended to obtain this Order.