Voluntary Dismissal in Response to Motion for Summary Judgment and Motion for Sanctions – Orange County

On September 7, 2023, Butch Mathenia, Esq. of Scarborough Attorneys at Law obtained a voluntary dismissal in response to the Motion for Summary Judgment and Motion for Sanctions. Plaintiff’s Complaint, filed in Orange County, alleged breach of an insurance contract due to the Insurer’s failure to pay Plaintiff, glass shops invoice in full. Plaintiff glass shop submitted an inflated invoice in the amount of $3,041.15 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 in the amount of $986.95 representing 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 of $1,085, which is lower than the invoiced amount, but higher than the pre-suit payment made by the insurer. The insurer immediately issued a supplemental payment to Plaintiff glass shop in the amount of $175.94, which included statutory interest. After the insurer made the supplemental payment, 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. Mr. Mathenia 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 also served and subsequently filed a Motion for Sanctions pursuant to Florida Statute 57.105, arguing that post-appraisal, Plaintiff’s claim was not supported by the material facts necessary to establish the claim, specifically damages. Prior to the expiration of the 21-day safe harbor period, and prior to the hearing on Defendant’s Motion for Final Summary Judgment, Plaintiff voluntarily dismissed the action.