Five Voluntary Dismissals in Response to Motions for Sanctions – Orange County

On October 6, 2023, Butch Mathenia, Esq. of Scarborough Attorneys at Law obtained five voluntary dismissals in response to the Motions for Sanctions filed in five separate breach of contract actions against Defendant insurer. Plaintiff glass shop submitted inflated invoices for windshield replacement services. The insurer determined the amount requested exceeded the amount payable under the subject policy and demanded appraisal of the amount of loss by invoking the appraisal clause of the subject policy. Concurrently, when demanding appraisal, the insurer also made payment on the undisputed amount of loss. Plaintiff glass shop did not respond to the insurers demand for appraisal, and instead raced to the courthouse to file suit for breach of contract. 

Mr. Mathenia, on behalf of the insurer, moved for dismissal for failure to comply with conditions precedent, or in the alternative, to compel the parties to appraisal. The Court compelled the parties to appraisal, which resulted in an appraised amount of loss lower than the invoiced amount, and lower than the pre-suit payment made by the insurer. Mr. Mathenia, on behalf of the insurer, moved for Final Summary Judgment based upon the amount of loss as determined by the appraisers being binding on the parties, and that the amount of loss has been paid by the insurer, leaving no remaining damages to litigate. Defense counsel also argued that Plaintiff was not entitled to prevailing party attorney’s fees and/or costs under Florida Statute 627.428 because Plaintiff raced to the Courthouse to file the lawsuit rather than complying with its contractual obligation to participate in appraisal of the amount of loss.

Mr. Mathenia, on behalf of the insurer, also served and subsequently filed Motions for Sanctions pursuant to Florida Statute 57.105, arguing that Plaintiff’s claim was not supported by the material facts necessary to establish the claim, specifically damages. Plaintiff glass shop did not withdraw or amend its complaint within the 21-day safe harbor period, but rather voluntarily dismissed the actions without prejudice over 4 months after the Motions for Sanctions had been filed with the Court, thus entitling Defendant insurer to recover reasonable attorney’s fees as sanctions because Plaintiff and/or Plaintiff’s attorney knew or should have known, that Plaintiff’s claim was not supported by the material facts necessary to bring or maintain the claim.