As a Result of Plaintiff’s Unauthenticated Exhibits and Premature Filing of Suit, Court Sided With Defendant and Strengthened Case Law for Insurance Carriers Looking to Dismiss Lawsuits Filed Primarily to Obtain Attorney Fees

Marshall Dennehey

At Home Auto Glass, LLC a/a/o James Franks v. State Farm Mutual Auto. Ins. Com., County Court, 9th Judicial Circuit in and for Orange County, Case No. 2020-SC-002807-O, Mar. 20, 2023

This suit involved a potential confession of judgment due to the insurance carrier issuing a partial payment on the claim after suit was filed.

After receiving the complaint with the plaintiff’s $2,259.79 invoice attached, State Farm issued a payment in the amount of $433.98, representing the coverage amount of the windshield, along with interest. As a result of said payment, the plaintiff filed its motion for partial summary judgment/confession. The motion had three exhibits attached: an estimate, a computer screen image, and a copy of State Farm’s check to the plaintiff. All three exhibits were unauthenticated.

The plaintiff argued that the computer screen image was undisputed evidence that the invoice had been submitted pre-suit. The court found that the image was nothing more than an unauthenticated, incomplete computer screen image from an unknown source and did not identify when it was created or by whom. The invoice was checked on the computer screen, but the plaintiff had not provided a copy of the invoice. The screen image also referenced an e-mail that had previously been sent, but the plaintiff did not provide a copy of the e-mail. Accordingly, the court found that the plaintiff had not established that State Farm ever had to pay the plaintiff for an insured loss under the insured’s policy prior to the filing of the lawsuit.

In opposition to plaintiff’s motion, State Farm argued that they had only first learned of the repair when they received the plaintiff’s complaint and that they had been unable to locate an e-mail or any other communication from the plaintiff prior to suit being filed. Accordingly, the court ruled that there was a genuine issue of material fact and denied plaintiff’s motion.

As part of its analysis, the court looked at Fla. Stat. § 627.428 and relevant case law related to this statute. The court held that an insured would only be entitled to fees if they presented an opportunity for the insurer to pay the claim as opposed to being the one who won the race to the courthouse. In citing People’s Tr. Ins. Co. v. Polanco, Fla. 4th DCA Jan. 11, 2023, the court held that the first sign of a disagreement between the plaintiff and the defendant in the instant case was at the filing of the complaint.

Because the plaintiff could not demonstrate that it needed to bring suit in order to obtain the payment under the policy, the court ruled that a fee recovery was not warranted. The court also highlighted that, had the plaintiff provided a pre-suit notice of the invoice, it may have received payment without the need to bring suit.

This case demonstrates that courts are not likely to grant fees when the primary purpose of the lawsuit appears to be nothing more than a mechanism to obtain attorney fees. I believe this order is significant as there has been a recent trend in personal injury protection litigation where plaintiffs have been filing declaratory actions that do not require a pre-suit demand, as opposed to a breach of contract action under 627.736(10), thus depriving insurance carriers of the ability to cure a potential underpayment on demand and prior to attorney fees becoming owed. I believe that this case may be used to bolster the position that such declaratory actions warrant a dismissal at the outset as they appear to be filed with the sole intent of generating attorney fees, as opposed to curing potential underpayments, similar to the case at hand.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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