JOSE LUIS PENA, APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, APPELLEE
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Florida appellate court reversed an award of attorney's fees against an insured who voluntarily dismissed a PIP claim after the insurer denied further medical payments, holding that dismissal of an inartfully pleaded complaint does not establish the claim lacked merit.
An insured has a right to judicial determination of whether full recovery has occurred, and voluntary dismissal of an inartfully pleaded complaint does not establish the claim lacked justiciable merit warranting attorney's fees under Section 57.105.
[1] An insured's right to judicial determination of full recovery is not defeated by voluntary dismissal of an inartfully pleaded complaint, and such dismissal does not estab…
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Court explaining why dismissal does not establish lack of merit
Pena was insured by Allstate and injured in an automobile accident. Allstate paid medical bills under the PIP statute but later denied further payment…
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PER CURIAM.
The plaintiff was insured by Allstate. He was involved in an automobile accident and came under medical treatment for injuries sustained. His insurance company paid his bills pursuant to the PIP statute, Section 627.736, Florida Statutes (1985).
Thereafter, the company notified him that they would no longer pay his medical bills. He instituted an action against his carrier, which inartfully sued to hold the carrier liable for additional medical treatment. The original complaint was dismissed with leave to amend. Subsequently the plaintiff filed a voluntary dismissal. Thereafter, the carrier moved for and received an award of attorney’s fees pursuant to the provision in Section 57.105, Florida Statutes (1985), of 8350 and costs of $400, which costs were generated as a result of activities by the carrier to demonstrate that the plaintiff’s lawsuit completely lacked any justiciable issue of law or fact.
We reverse.
The carrier, having denied further payment, claimed that the injured party had reached full recovery. The insured had a right to have a judicial determination that such a recovery had, in fact, occurred. The mere fact that the original complaint was inartfully drawn and the cause was subsequently voluntarily dismissed would not, by the later event, determine as a matter of law that the plaintiff has no bona fide claim. Englander v. St. Francis Hospital, Inc., 506 So. 2d 423 (Fla. 3d DCA 1987). We therefore reverse the award of attorney’s fees and costs.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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U.S. Sec. Ins. Co. v. Liliana Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000)…fee authorizing statutes, such as section 57.105, Florida Statutes, which authorized fees against a party who raised a frivolous claim or defense. We have held, and Cahuasqui concedes, that 57.105 applies in PIP suits. See Pena v. Allstate Ins. Co., 523 So. 2d 674, 675 (Fla. 3d DCA 1988). .The court found that: the failure to recover more than an offer of settlement does not mean that an insured that is awarded some recovery is precluded from being awarded any portion o their attorney’s fees and costs. Sco…
Authorities Cited
- Englander v. ST. Francis Hosp., Inc., 506 So. 2d 423 (Fla. 3d DCA 1987)