Preview
Filing # 192915448 E-Filed 02/28/2024 12:01:44 PM
IN THE COUNTY COURT FOR THE
TWELFTH JUDICIAL CIRCUIT IN AND
FOR SARASOTA COUNTY, FLORIDA
CIVIL DIVISION
BOWES IMAGING CENTER, A/A/O
SAMUEL SANTIAGO,
Plaintiff,
v. CASE NO: 2024 SC 000712 NC
CIVIL DIVISION
PROGRESSIVE EXPRESS INSURANCE
COMPANY,
Defendant.
___________________________________/
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S CLAIM FOR ATTORNEY’S
FEES PURSUANT TO SECTION 627.428
COMES NOW, the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY,
by and through its undersigned attorneys and pursuant to Florida Rule of Civil Procedure 1.140,
moves to strike Plaintiff’s demand for attorneys’ fees under section 627.428, Florida Statutes, and
states in support as follows:
1. Florida follows the American Rule, which permits recovery of attorneys’ fees only
when authorized by statute or by the agreement of the parties. State Farm Fire & Cas. Co. v.
Palma, 629 So. 2d 830, 832 (Fla. 1993). “Under Florida law, each party generally bears its own
attorneys’ fees unless a contract or statute provides otherwise.” Pepper’s Steel & Alloys, Inc. v.
United States, 850 So. 2d 462, 465 (Fla. 2003). Thus, entitlement to attorneys’ fees requires either
a statutory basis or contractual provision entitling a plaintiff to attorneys’ fees. A failure by the
plaintiff to provide the requisite basis for its entitlement to attorneys’ fees renders the request
invalid.
Filed 02/28/2024 02:41 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
CASE NO: 2024 SC 000712 NC
2. When a plaintiff fails to provide a contractual or statutory basis to recover fees, it
is appropriate for a court to strike the request as immaterial. See, Pegasus Aviation IV, Inc. v.
Aircraft Composite Techs., Inc., No. 1:16-cv-21255-UU, 2016 U.S. Dist. LEXIS 79397, at *17-18
(S.D. Fla. June 17, 2016); Fla. R. Civ. P. 1.140 (“A party may move to strike or the court may
strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”).
3. In the complaint, Plaintiff has demanded attorneys’ fees pursuant to section
627.428, Florida Statutes.1
4. Nevertheless, this is no longer a valid basis for attorney’s fees under Florida law
and therefore, should be stricken.
5. Section 627.428, Florida Statutes, has been repealed. In 2023, the Florida
Legislature passed HB 837/SB 236 as its tort reform legislation. See, Chap. No. 2023-15. One of
the notable provisions of the bill repealed section 627.428, Florida Statutes, which allowed for
one-way attorneys’ fees. The law went into effect on March 24, 2023, when the Governor signed
the bill.
6. The Progressive policy at issue is for the policy period of May 1, 2023 through May
1, 2024. See true and correct copy of the subject Declaration Page and Policy filed under separate
cover. This policy came into effect after March 24, 2023—the effective date of this legislation.
See, Chapter 2023-15; Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010)
(“In our analysis, we look at the date the insurance policy was issued and not the date that the suit
was filed or the accident occurred. . . .”); Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d
106, 108 (Fla. 1996) (“[T]he statute in effect at the time an insurance contract is executed governs
1
The complaint does not contain a claim for fees pursuant to a contract, and such contract does not
otherwise exist.
CASE NO: 2024 SC 000712 NC
substantive issues arising in connection with that contract.”). As a result, the new legislation
applies to this action.
7. Therefore, there is no statutory or contractual basis for attorneys’ fees for this
action. The Plaintiff has no valid claim for entitlement to attorneys’ fees. This Court should strike
the Plaintiff’s demand for attorneys’ fees under section 627.428, Florida Statutes, as immaterial.
WHEREFORE, Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY,
requests this Honorable Court to strike Plaintiff’s demand for attorneys’ fees under section
627.428, Florida Statutes, and for any further relief the Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
furnished via E-Mail on February 28, 2024 to Chase J. Engelbrecht, Esq., Alpha Law Group,
Attorney for Plaintiff, Bowes Imaging Center, A/A/O Samuel Santiago,
cengelbrecht@alphagroup.law, Office@alphagroup.law, (941) 304-1500.
Progressive PIP House Counsel
Attorneys for Defendant
4030 Crescent Park Drive, Suite 100
Riverview, FL 33578
(Asst.)/(813) 775-4792 (Direct)
Fax: (866) 516-8617
SERVICE DESIGNATIONS:
Primary: TampaPIPHC1@Progressive.com
Secondary EHogref1@Progressive.com
By:
ERIC A. HOGREFE, ESQUIRE
Florida Bar No. 113861
“Salaried Employees of Progressive Casualty Insurance Company”
Preview
Filing # 192915448 E-Filed 02/28/2024 12:01:44 PM IN THE COUNTY COURT FOR THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA CIVIL DIVISION BOWES IMAGING CENTER, A/A/O SAMUEL SANTIAGO, Plaintiff, v. CASE NO: 2024 SC 000712 NC CIVIL DIVISION PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. ___________________________________/ DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES PURSUANT TO SECTION 627.428 COMES NOW, the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, by and through its undersigned attorneys and pursuant to Florida Rule of Civil Procedure 1.140, moves to strike Plaintiff’s demand for attorneys’ fees under section 627.428, Florida Statutes, and states in support as follows: 1. Florida follows the American Rule, which permits recovery of attorneys’ fees only when authorized by statute or by the agreement of the parties. State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 832 (Fla. 1993). “Under Florida law, each party generally bears its own attorneys’ fees unless a contract or statute provides otherwise.” Pepper’s Steel & Alloys, Inc. v. United States, 850 So. 2d 462, 465 (Fla. 2003). Thus, entitlement to attorneys’ fees requires either a statutory basis or contractual provision entitling a plaintiff to attorneys’ fees. A failure by the plaintiff to provide the requisite basis for its entitlement to attorneys’ fees renders the request invalid. Filed 02/28/2024 02:41 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL CASE NO: 2024 SC 000712 NC 2. When a plaintiff fails to provide a contractual or statutory basis to recover fees, it is appropriate for a court to strike the request as immaterial. See, Pegasus Aviation IV, Inc. v. Aircraft Composite Techs., Inc., No. 1:16-cv-21255-UU, 2016 U.S. Dist. LEXIS 79397, at *17-18 (S.D. Fla. June 17, 2016); Fla. R. Civ. P. 1.140 (“A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”). 3. In the complaint, Plaintiff has demanded attorneys’ fees pursuant to section 627.428, Florida Statutes.1 4. Nevertheless, this is no longer a valid basis for attorney’s fees under Florida law and therefore, should be stricken. 5. Section 627.428, Florida Statutes, has been repealed. In 2023, the Florida Legislature passed HB 837/SB 236 as its tort reform legislation. See, Chap. No. 2023-15. One of the notable provisions of the bill repealed section 627.428, Florida Statutes, which allowed for one-way attorneys’ fees. The law went into effect on March 24, 2023, when the Governor signed the bill. 6. The Progressive policy at issue is for the policy period of May 1, 2023 through May 1, 2024. See true and correct copy of the subject Declaration Page and Policy filed under separate cover. This policy came into effect after March 24, 2023—the effective date of this legislation. See, Chapter 2023-15; Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010) (“In our analysis, we look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred. . . .”); Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) (“[T]he statute in effect at the time an insurance contract is executed governs 1 The complaint does not contain a claim for fees pursuant to a contract, and such contract does not otherwise exist. CASE NO: 2024 SC 000712 NC substantive issues arising in connection with that contract.”). As a result, the new legislation applies to this action. 7. Therefore, there is no statutory or contractual basis for attorneys’ fees for this action. The Plaintiff has no valid claim for entitlement to attorneys’ fees. This Court should strike the Plaintiff’s demand for attorneys’ fees under section 627.428, Florida Statutes, as immaterial. WHEREFORE, Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, requests this Honorable Court to strike Plaintiff’s demand for attorneys’ fees under section 627.428, Florida Statutes, and for any further relief the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via E-Mail on February 28, 2024 to Chase J. Engelbrecht, Esq., Alpha Law Group, Attorney for Plaintiff, Bowes Imaging Center, A/A/O Samuel Santiago, cengelbrecht@alphagroup.law, Office@alphagroup.law, (941) 304-1500. Progressive PIP House Counsel Attorneys for Defendant 4030 Crescent Park Drive, Suite 100 Riverview, FL 33578 (Asst.)/(813) 775-4792 (Direct) Fax: (866) 516-8617 SERVICE DESIGNATIONS: Primary: TampaPIPHC1@Progressive.com Secondary EHogref1@Progressive.com By: ERIC A. HOGREFE, ESQUIRE Florida Bar No. 113861 “Salaried Employees of Progressive Casualty Insurance Company”