COUNTY CIVIL COURT:
Insurance—PIP
Benefits—Section 222.18, Florida Statutes, does not protect PIP benefits
that have been assigned—assignee does not qualify as creditor under § 222.18—Final
Judgment affirmed. Hays v. Progressive
Express Ins. Co., No. 03-5043AP-88A (
COUNTY CIVIL COURT: Attorney’s Fees—Trial court is not required
to hold evidentiary hearing on whether sanctions are warranted under Section
57.105 so long as evidence is otherwise in the record—In absence of a transcript
of relevant hearing, appellate court could not review whether trial court
abused discretion in awarding sanctions—award affirmed. Hays v. Progressive Express Ins. Co.,
No. 03-5043AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
HEATHER HAYS,
Appellant
vs. Appeal No. 03-5043AP-88A
UCN522003AP005043XXXXCV
PROGRESSIVE EXPRESS
INSURANCE COMPANY,
Appellee.
______________________________________/
Opinion Filed ______________
Appeal from Final Judgment
Judge William B. Blackwood
Arthur Liebling, Esq.
Attorney for Appellant
Valeria Hendricks, Esq.
Attorney for Appellee
This matter is before the Court on an appeal filed by Heather Hays (Hays) from the Order and Summary Final Judgment entered on August 11, 2003, denying Hays’ motion for summary judgment, granting Progressive Express Insurance Company’s (Progressive) motion for summary judgment, and awarding attorney’s fees to Progressive as sanctions pursuant to Section 57.105, Florida Statutes. Having fully reviewed the briefs, the record, and pertinent legal authority, this Court hereby affirms the Order.
Hays had personal injury protection (PIP) benefits under an automobile insurance policy with Progressive. While this policy was in force, Hays sustained injuries in an automobile accident. Progressive acknowledges that on October 17, 2001, it received a letter from Hays instructing it to reserve all remaining PIP benefits for lost wages.
However,
Hays acknowledges that on October 26, 2001, Progressive received a bill from
There
being no factual dispute in this matter, both parties filed motions for summary
judgment. Hays contended that her claim
to the PIP benefits superseded
The trial court agreed with Progressive, granting its motion and denying Hays’. Further, the trial court granted Progressive’s request for attorney’s fees pursuant to Section 57.105, Florida Statutes, finding that “Plaintiff and/or Plaintiff’s attorney knew or should have known that the claim when initially presented to the Court was not supported by the material facts necessary to establish the claim nor was the claim supported by the application of the prevailing case law to those material facts.”
On appeal, Hays raises three contentions: (1) that the trial court erroneously granted Progressive’s motion for summary judgment; (2) that the trial court had no basis to award Progressive attorney’s fees; and (3) that the trial court should have awarded her summary judgment. This Court finds each of these contentions to be without merit.
Hays maintains
that Section 222.18 bars Progressive from paying her PIP benefits to
Hays’
argument merely assumes that the term “creditor” in the statute covers
assignees, without citing any authority for this proposition.[1] Not only is Hays’ position contrary to the
language of the statute, but it also ignores the fact that, unlike a creditor,
an assignee receives all interest of the assignor under the assigned
contract. State Farm Fire &
Casualty
The
Second District has also indicated that an assignee is not a creditor for
purposes of Section 222.18. In Crotts
v. Bankers & Shippers Ins. Co., 476 So. 2d 1357 (Fla. 2d DCA 1985),
Crotts twice assigned his PIP benefits to a hospital treating him for severe
injuries incurred in a motorcycle accident.
Before
the benefits were exhausted, the insurance company received a claim from the
hospital, based upon the assignments, for the remainder of the proceeds.
In
determining that the trial court had not erred in denying Crotts attorney’s
fees even though it had awarded him the benefits, the Second District noted
that fees are warranted only when the insurance company wrongfully pushes the
parties into litigation by not resolving the conflict when it could reasonably
have done so.
In
particular, the Second District noted that the key factual issue was whether
the assignments Crotts made to the hospital were valid such that they would “divest
the insured of his privilege under the policy to request that the insurance
proceeds be paid as disability . . . benefits.”
While not directly ruling on the scope of Section 222.18, the court in Crotts indicated that if Crotts’ assignments were valid, he would be unable to claim the PIP benefits as disability payments. This interpretation is in accordance with the plain language of Section 222.18 as well as the exclusive rights which an assignee enjoys. Therefore, this Court finds that the trial court properly granted Progressive’s motion for summary judgment. For the same reasons, this Court also finds that the trial court properly denied Hays’ motion for summary judgment.
Regarding the attorney’s fees that were awarded to Progressive as sanctions, Section 57.105, Florida Statutes, provides that such fees are warranted when
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.
. . . .
(2)
Paragraph [b] does not apply if the court determines that the claim or defense
was initially presented to the court as a good faith argument for the
extension, modification, or reversal of existing law or the establishment of
new law, as it applied to the material facts, with a reasonable expectation of
success.
§
57.105(1)-(2),
In the present matter, Hays argues
that the trial court was required to hold an evidentiary hearing regarding
whether her claim presented a good faith argument under Section 57.105(2). However, while a court must base its award of
fees on substantial competent evidence, this evidence may be presented “at the
hearing on attorney’s fees or otherwise before the court and in the
record.” Cooke v. Custom
Therefore, the trial court was not
required to hold an evidentiary hearing.
Further, this Court cannot review whether the trial court had
substantial, competent evidence justifying the award of fees because Hays has
not presented this Court with a transcript of the summary judgment hearing or a
statement of evidence pursuant to Fla. R. App. P. 9.200(b)(4). See Perlman v. Abel & Zimmerman,
881 So. 2d 1156, 1156-57 (
Therefore, it is
ORDERED AND ADJUDGED that the Order and Summary Final Judgment entered on August 11, 2003, is hereby AFFIRMED.
It is further
ORDERED AND ADJUDGED that Appellee’s Motion for Appellate Attorney’s Fees is DENIED.
It is further
ORDERED AND ADJUDGED that Appellant’s Motion for Appellate Attorney’s Fees is DENIED.
DONE
AND ORDERED in Chambers, at
____________________________________
JOHN
A. SCHAEFER
Circuit
Judge, Appellate Division
Copies to:
Judge William B. Blackwood
Arthur Liebling, Esq.
Valeria Hendricks, Esq.
Davis & Harmon, P.A.
[1] While Hays does contend that Section 222.18 will be rendered meaningless if it does not extend to assignees, this Court finds it quite logical that the legislature would choose to protect disability benefits from creditors having nothing to do with the underlying automobile accident while allowing parties to whom the insured has specifically assigned those benefits the right to claim them.
[2] Other claims not relevant to this discussion were also filed.
[3] Hays also argues that the trial court’s finding that her claim was “frivolous” was erroneous because Section 57.105 no longer uses the “frivolous” standard as the basis for an award. However, the trial court did not base the award on that finding; instead, it specifically based the award of attorney’s fees on a finding that Hays’ claim was not supported by either the material facts necessary to establish the claim or the application of then-existing law to those material facts.