16 Fla. L. Weekly Supp. 196b
Online Reference: FLWSUPP 162WADE
Insurance — Personal injury protection — Attorney’s fees — Justiciable issues — Where prior to filing complaint medical provider and its attorney were provided with explanations of benefits putting them on notice that benefits had been exhausted, and prior to voluntary dismissal provider and attorney were provided with PIP log reflecting payments up to policy limits, provider and attorney knew or should have known that claim when initially presented was not justiciable — Attorney’s fees and costs awarded to insurer
OAKLAND PARK MRI, INC., A/A/O MAUREEN WADE, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 08-04046 COCE 53. October 8, 2008. Robert W. Lee, Judge. Counsel: Jeffrey Baer and Charles J. Kane, Boca Raton, for Plaintiff. Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court on the 25th day of September 2008 on Defendant’s Motion for Attorney’s Fees and Costs and was heard at 1:30 P.M. at the Broward County Courthouse, 201 S.E. 6th Street, Fort Lauderdale, Florida 33301. Majid Vossoughi, Esq., appeared on behalf of the Defendant, United Automobile Insurance Company, and Jeffrey Baer, Esq., appeared on behalf of the Plaintiff, Oakland Park MRI, Inc. This Court reviewed Defendant’s Motion for Attorney’s Fees and Costs and having heard argument from counsel for both parties and being otherwise fully advised in the premises makes the following factual findings and conclusions of law.
FACTUAL FINDINGS
1. Plaintiff, Oakland Park MRI, Inc., as assignee of Maureen Wade, filed the instant lawsuit on 03/14/2008 alleging Breach of Contract by Defendant for failure to pay No-Fault benefits, failure to provide PIP Log, and failure to provide an Explanation of Benefits.
2. Defendant, United Automobile Insurance Company, on April 2, 2008, served Plaintiff with its Motion to Dismiss & Motion for 57.105 Attorney’s Fees seeking dismissal of Plaintiff’s claim due to Plaintiff’s prior negotiation of draft for No-Fault benefits tendered by Defendant in the amount of $1,056.80 as “FULL AND FINAL PAYMENT OF PIP BENEFITS FOR MAUREEN WADE.” Defendant also attached a copy of its Explanation of Benefits dated 04/04/07 as well as copies of the previously served drafts tendered to and cashed by the Plaintiff. Plaintiff did not dismiss its claim against Defendant within twenty-one (21) days and, accordingly, on May 7, 2008 Defendant re-served and filed its Motion to Dismiss & Motion for 57.105 Attorney’s Fees with the Court.
3. Defendant, United Automobile Insurance Company, on April 7, 2008, served Plaintiff with a second Motion to Dismiss & Motion for 57.105 Attorney’s Fees seeking dismissal of Plaintiff’s claim as No-fault benefits had been exhausted and tendered up to policy limits of $10,000.00. Defendant also attached to this motion a copy of its PIP Log as well as “Display Drafts” reflecting payments to Sheridan ER Physicians ($300), Westside Regional Medical Center ($4,842.40), Fidel Goldson, D.C., ($2,920.00), Florida United Radiology ($408.80), Town of Davie ($352.00), Wayne Frasier, M.D. ($120.00), and Oakland Park MRI ($1,056.80) totaling $10,000.00. Plaintiff did not dismiss its claim against Defendant within twenty-one (21) days and, accordingly, on May 7, 2008 Defendant re-served and filed its Motion to Dismiss & Motion for 57.105 Attorney’s Fees with the Court.
4. On August 11, 2008 the Court entered an Agreed Order pursuant to agreement of the parties that provided for service of an Answer & Affirmative Defenses by the Defendant within twenty days. The Agreed Order of the parties also specifically preserved Defendant’s rights to seek attorney’s fees and provided that the “Court hereby reserves ruling on Defendant’s Motions for 57.105 Attorney’s Fees pending the ultimate disposition and/or adjudication on the merits of the case.”
5. On August 12, 2008 Defendant served Plaintiff with its Motion for Final Summary Judgment and Memorandum of Law in Support Thereof and the Court coordinated and set a hearing on said motion for 09/25/08. Subsequently, on August 18, 2008 and prior to a hearing on Defendant’s summary judgment motion, Plaintiff served Defendant with its Notice of Voluntary Dismissal with Prejudice. Defendant’s Motion for Final Summary Judgment reflects that both the Plaintiff and counsel for Plaintiff were furnished with Explanations of Benefits dated 04/04/07, 03/27/07, and 04/12/07 placing them on notice of exhaustion of benefits pertaining to this matter as well as a PIP Log reflecting payments to all medical providers including Plaintiff in the amount of $10,000.
6. On August 26, 2008 Defendant served Plaintiff with its Motion for Attorney’s Fees and Costs and a hearing on Defendant’s motion was coordinated by the Court and heard on September 25, 2008.
7. Based on the foregoing, this Court finds that Plaintiff’s claim, when initially presented, was unsupported by material facts necessary to establish the claim and the application of then-existing law to those material facts.
LEGAL ANALYSIS
1. Fla. Stat. 57.105(1) provides:
(1) Upon the court’s initiative or motion of any party, the court shall awarda 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.
However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.
2. Fla. Stat. 57.105 provides for the basis of sanctions against parties and attorneys who assert a frivolous claim or defense or pursue litigation for purposes of delay. The purpose of the statute is to “discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing the price tag of attorney’s fees awards on the losing party.” Murphy v. WISU Props., Ltd., 895 So.2d 1088, 1093 (Fla. 4th DCA 2004); Muckenfuss v. Deltona Corp., 508 So.2d 340, 341 (Fla. 1987) [quoting Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla. 1982)].
3. Use of the word “shall,” in context of statute establishing attorney fees for frivolous claims to be paid in equal amounts by the losing party and the losing party’s attorney, evidences the legislative intention to impose a mandatory penalty in the form of a reasonable attorney’s fee once the determination has been made that there was a complete absence of a justiciable issue raised by the losing party. Morton v. Heathcock, 913 So.2d 662 (Fla. 3rd DCA 2005), rehearing denied, review dismissed 925 So.2d 1031; Wright v. Acierno, 437 So.2d 242 (Fla. 5th DCA 1983); Debra, Inc. v. Orange County, Florida, 445 So.2d 404 (Fla. 5th DCA 1984).
4. The Court finds that Defendant is the “prevailing party” for purposes of a fee award. The service of a voluntary dismissal with prejudice by Plaintiff makes the Defendant a “prevailing party” as regards to its entitlement to prevailing party attorney fees and court need not determine whether Defendant has conclusively shown that it would not have been found liable on dismissed claim had case been actually determined on its merits. Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So.2d 640 (Fla. 4th DCA 1997), rehearing denied, review dismissed 698 So.2d 543.
5. Attorney fees are taxable under Fla. Stat. 57.105 after a voluntary dismissal if based upon a finding of a complete absence of a justiciable issue of either law or fact. Merrill Enterprises, Inc. v. Barkett Oil Co. of Florida, 421 So.2d 770 (Fla. 4th DCA 1982). See also; MacBain v. Bowling, 374 So.2d 75 (Fla. 3rd DCA 1979) (a voluntary dismissal will authorize an award of attorney fees under this section where trial court finds that there is a complete absence of a justiciable issue of either law or fact). Furthermore, for purposes of award of attorney fees for asserting frivolous claim or defense, frivolousness is measured when the claim or defense is initially presented. Carnival Leisure Industries, Ltd. v. Holzman, 660 So.2d 410 (Fla. 4th DCA 1995). However, under amended version of statute authorizing attorney fees for frivolous claims, a party may be subject to fees if a claim is not dropped or dismissed when it becomes evident it is no longer justiciable, even though it may not have been frivolous when filed. Albritton v. Ferrera, 913 So.2d 5 (Fla. 1st DCA 2005).
6. Accordingly, based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Defendant’s Motion for Attorney’s Fees & Costs is granted as of May 6, 2008.
If the parties are not able to agree on the amount, Defendant’s attorney may request that the Court set the matter for evidentiary hearing.