DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

THE DENTAL LAW FIRM, P.A. d/b/a SHOCHET LAW GROUP,

Appellant,

v.

THE PEOPLE’S CHOICE PUBLIC ADJUSTERS, LLC, et al.,

Appellees.

No. 4D21-1295

[August 17, 2022]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Gregory M. Keyser, Judge; L.T. Case No. 

502020CA004056.

Randall Shochet of Shochet Law Group, Trenton, for appellant.

Alan L. Raines and Elizabeth Jimenez of Raines Legal, Boca Raton, for 

appellee The People’s Choice Public Adjusters, LLC.

GERBER, J.

After a public adjuster sued a law firm in a third-party action, the law 

firm filed a section 57.105, Florida Statutes (2020), sanctions motion

against the public adjuster and the public adjuster’s counsel. The law 

firm’s section 57.105 motion argued the public adjuster’s third-party 

action, when initially filed, was not supported by the material facts 

necessary to establish the third-party action’s claims or the application 

of then-existing law, and did not present a good faith argument for the 

extension, modification, or reversal of existing law or the establishment 

of new law. The circuit court entered an order denying the law firm’s 

section 57.105 motion.

From the law firm’s appeal of that order, we reverse. We conclude the 

public adjuster’s third-party action, when initially filed, was not 

supported by the material facts necessary to establish the third-party 

action’s claims or the application of then-existing law, and did not 

present a good faith argument for the extension, modification, or reversal 

of existing law or the establishment of new law. Thus, the circuit court 

erred in denying the law firm’s section 57.105 motion.
2

Procedural History

A. The Insureds’ Action Against Their Insurer

The multi-faceted procedural history began when two insureds hired 

the public adjuster to report a property loss claim to their insurer.

Ninety-three days after the public adjuster had reported the claim, the 

insurer contacted the public adjuster about inspecting the insureds’ 

property. However, the public adjuster believed the insurer’s request 

was untimely pursuant to section 627.70131(5)(a), Florida Statutes 

(2017):

Within 90 days after an insurer receives notice of an initial, 

reopened, or supplemental property insurance claim from a 

policyholder, the insurer shall pay or deny such claim or a 

portion of the claim unless the failure to pay is caused by 

factors beyond the control of the insurer which reasonably 

prevent such payment. ...

§ 627.70131(5)(a), Fla. Stat. (2017) (emphases added). Based on the

public adjuster’s belief that the insurer’s request to inspect the property 

was untimely, the public adjuster did not permit the insurer to inspect 

the insureds’ property. Without being permitted an inspection, the 

insurer denied the insureds’ claim.

The insureds, now represented by the law firm, filed a breach of 

contract action against the insurer. In response, the insurer filed a 

summary judgment motion arguing the insureds had not permitted a

property inspection as the policy required. The law firm did not file a 

response or affidavit on the insureds’ behalf arguing that the insurer’s 

request to inspect the property had been untimely under section 

627.70131(5)(a). Without any opposition having been filed by the 

insureds, the circuit court entered an order granting the insurer’s 

summary judgment motion.

B. The Insureds’ Action Against the Public Adjuster

The insureds, still represented by the law firm, then filed a two-count 

action against the public adjuster.

The insureds’ Count 1 against the public adjuster sought damages for 

violation of section 626.854(14)(b), Florida Statutes (2020) (“A public 
3

adjuster may not restrict or prevent an insurer ... or other person acting 

on behalf of the insurer from having reasonable access at reasonable 

times to ... the insured property that is the subject of a claim.”).

The insureds’ Count 2 against the public adjuster sought damages for 

breach of contract, alleging the public adjuster had “fail[ed] to act in the 

[insureds’] best interests ... [and] fail[ed] to properly appraise, advise 

and/or assist in the adjustment of the loss.”

C. The Public Adjuster’s Third-Party Action Against the Law Firm

In response to the insureds’ suit, the public adjuster filed a threecount third-party action against the law firm representing the insureds.

The public adjuster’s Count 1 against the law firm was for breach of 

intended beneficiary contract. Count 1 alleged, in pertinent part:

[The law firm] and [the insureds] intended that [their]

[legal services] [c]ontract benefit [the public adjuster] by 

virtue of ... [the public adjuster] being entitled to [20%] ... of 

any money [which the insureds] received pursuant to the 

[public adjuster’s agreement with the insureds,] [which the 

law firm] was aware of prior to the execution of the [legal 

services contract].

The [legal services contract] was breached by [the law 

firm] failing to file a [r]esponse ... to the [insurer’s] [m]otion 

for [s]ummary [j]udgment or [a]ffidavit [o]pposing the 

[insurer’s motion] and failing to address [the insurer’s] 

failure to inspect the [p]roperty or pay out the insurance 

claim before [section 627.70131(5)(a)’s] [ninety-]day deadline 

....

(paragraph numbering deleted).

The public adjuster’s Count 2 against the law firm was for 

malpractice. Count 2 sought to recover the public adjuster’s damages 

“as a result of [the law firm’s] breach of its professional duty to [the 

insureds],” including the failure to respond to the insurer’s summary 

judgment motion or address the insurer’s failure to comply with section 

627.70131(5)(a)’s ninety-day deadline to inspect the property or pay the 

claim.
4

The public adjuster’s Count 3 against the law firm was for common 

law indemnification. Count 3 similarly alleged the law firm had failed to 

file a response to the insurer’s summary judgment motion or address the 

insurer’s failure to comply with 627.70131(5)(a)’s ninety-day deadline to 

inspect the property or pay the claim, and the public adjuster was

“without any fault as to the [law firm’s] actions,” for which it “has 

suffered damages.”

D. The Law Firm’s Motion to Strike the Public Adjuster’s Third-Party 

Action as a Sham

The law firm filed a motion to strike the public adjuster’s third-party 

action as a sham.

The law firm’s motion argued, as to all of the public adjuster’s thirdparty counts, the public adjuster had been solely responsible for not 

allowing the insurer to inspect the insureds’ property, based on the 

public adjuster’s errant belief that the expiration of section 

627.70131(5)(a)’s ninety-day deadline permitted the public adjuster to 

refuse the inspection.

As to the public adjuster’s Count 1 for breach of intended beneficiary 

contract, the law firm argued no evidence showed the insureds and the 

law firm intended their legal services agreement to directly benefit the 

public adjuster. Instead, according to the law firm:

At most, the [legal services agreement] only establishe[d]

the Insured[s’] responsibility to retain 80% of the settlement 

and to pay a 20% commission to [the public adjuster]. This 

is insufficient to assert [an intended] beneficiary breach of 

contract claim.

As to the public adjuster’s Count 2 for malpractice, the law firm 

acknowledged that an intended beneficiary of a legal services agreement 

may have standing to pursue a malpractice claim. However, according to 

the law firm, no evidence showed the insureds and the law firm intended 

their agreement to directly benefit the public adjuster.

As to the public adjuster’s Count 3 for common law indemnification,

the law firm argued the public adjuster was not without fault and did not 

have a special relationship with the law firm which, if present, would

have made the public adjuster vicariously, constructively, derivatively, or 

technically liable to the insureds for the law firm’s alleged malpractice.
5

The public adjuster filed a response to the law firm’s motion to strike. 

To show the public adjuster was an intended beneficiary of the legal 

services agreement, the response pointed to a different circuit court’s 

discovery order—entered in a separate action between the public adjuster 

and the law firm—which had provided: “[The law firm] engaged in a tripartite relationship with [the insureds as] mutual clients of [the law firm] 

and [the public adjuster], which was accompanied or preceded by [the 

public adjuster’s agreement] with the [insureds].” (emphases added). 

The public adjuster also argued the law firm’s failure to respond to the 

insurer’s summary judgment motion was what ultimately resulted in the 

insureds’ defeat on that motion and, in turn, the insureds’ failure to 

prevail against the insurer.

A predecessor circuit court held a hearing on the law firm’s motion to 

strike. During the hearing, the law firm introduced its legal services 

agreement with the insureds. The public adjuster claimed it was seeing 

the agreement for the first time. After the hearing, the predecessor 

circuit court took the law firm’s motion to strike under advisement.

A week later, the public adjuster filed a voluntary dismissal of its 

Count 3 against the law firm for common law indemnification. However, 

the public adjuster filed a post-hearing memorandum in support of its 

Count 1 breach of intended beneficiary contract and Count 2 for 

malpractice against the law firm. The memorandum argued the following 

provisions of the law firm’s legal services agreement with the insureds 

evidenced the agreement’s “intent and meaning”:

1. FEES FOR LEGAL SERVICES – CONTINGENCY FEE 

BASIS: [The insureds] shall not be obligated to [the law firm] 

unless there is a recovery from the [insurer]. [The insureds]

hereby authorize [the law firm] to file suit against ... [the 

insurer] or other responsible party should they deny, reject, 

or under-pay [the insureds’] claim.

....

5. [INSUREDS] WHO HAVE RETAINED A PUBLIC 

ADJUSTER: If [the insureds] have retained a public adjuster 

... in connection with the same insurance claim ... [the 

insureds] will be solely responsible to pay the public adjuster 

from the [the insureds’] net proceeds in accordance with [the 

insureds’] agreement with the public adjuster.
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The predecessor circuit court entered an order granting the law firm’s 

motion to strike the public adjuster’s third-party action. In the order, 

the predecessor circuit court found that because the public adjuster had 

voluntarily dismissed its common law indemnification claim, and had 

never pled a claim for contribution or subrogation, the public adjuster 

lacked standing to assert a third-party action. The predecessor circuit 

court further found the public adjuster was not an intended beneficiary 

of the legal services agreement. “To the contrary,” the predecessor circuit 

court found, “the [legal services] agreement makes clear that [its] 

intention is to ... leav[e] [the public adjuster’s] payment to the [insureds]. 

The legal services ... are exclusively intended for the [insureds’] benefit.”

E. The Law Firm’s Section 57.105 Motion Against the Public Adjuster

On the same date when the law firm had filed its motion to strike the 

public adjuster’s third-party action, the law firm also served the public 

adjuster with a section 57.105 “safe harbor” letter and proposed section 

57.105 sanctions motion. The law firm’s “safe harbor” letter properly 

stated that the law firm would file its section 57.105 motion if the public 

adjuster did not voluntarily dismiss its third-party action within twentyone days of service.

After the twenty-one day “safe harbor” period expired, the law firm 

filed its section 57.105 motion with the circuit court.

After the predecessor circuit court entered its order striking the public 

adjuster’s third-party complaint, the public adjuster filed a response to 

the law firm’s section 57.105 motion. The public adjuster argued, in 

pertinent part, that its third-party action was not frivolous when filed 

because the public adjuster had relied upon the different circuit court’s 

discovery order—entered in a separate action between the public adjuster 

and the law firm—which had provided: “[The law firm] engaged in a tripartite relationship with [the insureds as] mutual clients of [the law firm] 

and [the public adjuster], which was accompanied or preceded by [the 

public adjuster’s agreement] with the [insureds].” (emphases added).

A successor judge held a hearing on the law firm’s section 57.105 

motion. At the hearing, the law firm replied that the other circuit court 

case upon which the public adjuster was relying concerned “a discovery 

issue between the parties over client confidential records that have 

nothing to do with this case.” The law firm added:

[E]ven if we get into the ... concept of [a] tripartite 

relationship[,] ... [t]he argument regarding the tripartite 
7

relationship has no bearing because there is no relationship 

whereby a claim for contribution, indemnification, and/or 

subrogation, can be made in this case, and the [predecessor] 

court made that ... clear in the [motion to strike] hearing, ... 

that there is no way ... to ever show a claim for 

indemnification in this matter ....

After the hearing, the circuit court entered an order denying the law 

firm’s section 57.105 motion, summarily finding that the public adjuster 

had “offered sufficient evidence and legal authority to show that [its] 

claim was not so lacking in merit as to entitle the [law firm] to attorney’s 

fees and costs pursuant to Florida Statute Section 57.105.”

The law firm timely filed this appeal.

F. The Parties’ Arguments on Appeal

The law firm’s briefs summarize its argument on appeal as follows:

To begin, the [predecessor circuit] court [wa]s correct that 

once [the public adjuster] dismissed the indemnification 

claim, this rendered the remaining ... two claims moot. It 

should have then become evident to [the public adjuster] 

that [its] remaining two claims were no longer justiciable. 

[The public adjuster] should have immediately dismissed 

them. [It] did not. Thus, on this ground alone, sanctions are 

warranted under ... § 57.105.

Even if this were not the case, nothing in the record 

supports a conclusion that [the public adjuster] is a thirdparty beneficiary to the [legal services agreement]. ...

...

The claim for [p]rofessional [m]alpractice hinges on [the 

public adjuster] being a third-party beneficiary. ... However, 

... [the public adjuster] is not a third-party beneficiary to the 

[legal services agreement]. ... Therefore, pursuant to ... § 

57.105, an award of attorney’s fees is required.

The public adjuster’s answer brief summarizes its response as follows:

The [t]hird-[p]arty [action’s] ... claims against [the law 

firm] ... were not frivolous or untenable, and constituted a 
8

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.

... The [predecessor circuit] [c]ourt in this action and [the 

other circuit court in the discovery-related action] ... have 

found ... that there is enough of a longstanding history and 

relationship between the [p]arties as to where [the public 

adjuster] could genuinely believe that there was a third-party 

beneficiary relationship [between] [the public adjuster], [the 

law firm], and their mutual clients.

Our Review

“The standard of review of a [circuit] court’s decision on entitlement to 

section 57.105(1) attorney’s fees is generally abuse of discretion. 

However, to the extent a [circuit] court’s order on fees is based on an 

issue of law, this court applies de novo review.” Minto PBLH, LLC v. 1000 

Friends of Fla., Inc., 228 So. 3d 147, 149 (Fla. 4th DCA 2017) (citation 

and internal quotation marks omitted).

Section 57.105(1), Florida Statutes (2020), provides in pertinent part:

(1) Upon ... motion of any party, the court shall award a 

reasonable attorney’s fee ... to be paid to the prevailing party 

... at any time ... in which 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 thenexisting law to those material facts.

....

(3) Notwithstanding subsections (1) and (2), monetary 

sanctions may not be awarded:

(a) Under paragraph (1)(b) if the court determines that the 

claim or defense was initially presented to the court as a 
9

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)(a)-(b), (3)(a), Fla. Stat. (2020).

“A finding under section 57.105(1)(a) or (1)(b) is tantamount to a 

conclusion that the claim was frivolous when filed, or later became 

frivolous.” In re A.T.H., 180 So. 3d 1212, 1215 (Fla. 1st DCA 2015) 

(citation and internal quotation marks omitted). As we explained in 

Minto:

Where there is an arguable basis in law and fact for a party’s 

claim, a [circuit] court may not sanction that party under 

section 57.105. Courts must apply section 57.105 “with 

restraint to ensure that it serves its intended purpose of 

discouraging baseless claims without casting a chilling effect 

on use of the courts.”

228 So. 3d at 149 (internal citations omitted).

Furthermore, a plaintiff’s ultimate voluntary dismissal of a claim does 

not automatically entitle the defendant to section 57.105 fees. Cf. 

Connelly v. Old Bridge Vill. Co-Op, Inc., 915 So. 2d 652, 656 (Fla. 2d DCA 

2005) (“The plaintiffs’ ultimate voluntary dismissal of [two defendants] 

did not constitute adequate justification for [awarding] section 57.105 

fees [to those defendants].”). “Failing to state a cause of action is not, in 

and of itself, a sufficient basis to support a finding that a claim was so 

lacking in merit as to justify an award of fees pursuant to section 

57.105.” Id. (citation omitted).

Here, we conclude the public adjuster’s third-party action against the 

law firm, when initially filed—or, at the very latest, from when the public 

adjuster purportedly first saw the legal services agreement—was not 

supported by the material facts necessary to establish the third-party 

action’s claims or the application of then-existing law, and did not 

present a good faith argument for the extension, modification, or reversal 

of existing law or the establishment of new law. Thus, the successor 

circuit court erred in denying the law firm’s section 57.105 sanctions

motion.

We will address each count in turn.
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A. Count 1 for Breach of Intended Beneficiary Contract

As the law firm’s motions to strike and for section 57.105 sanctions 

argued, the public adjuster was not an intended beneficiary of the legal 

services agreement between the law firm and the insureds:

The mutual intent of the [legal services agreement] is for 

[the law firm] to provide legal services to the Insured[s] .... It 

specifically states that [the law firm] has no obligation to pay 

[the public adjuster] or even an intention to pay [the public 

adjuster]. Thus, the intent of both ... parties to the [legal 

services agreement] is to primarily and directly benefit the 

Insured[s], not [the public adjuster]. A third party is only 

considered a beneficiary to the contract if both ... contracting 

parties intend to primarily and directly benefit the third 

party. Cigna Fire Underwriters Ins. Co. v. Leonard, 645 So. 

2d 28[, 29] (Fla. 4th DCA 1994).

....

Here, ... [a]t most, the [legal services agreement] only 

establishes the Insured[s’] responsibility to retain 80% of the 

settlement and to pay a 20% commission to [the public 

adjuster]. This is insufficient to assert [an intended]

beneficiary breach of contract claim.

“It is not enough that the ... services ultimately rendered 

accrue to the [third party].” City of Tampa v. ThorntonTomasetti, P.C., 646 So. 2d 279, 282-83 (Fla. 2d DCA 1994) 

(citation omitted). ... A third party who benefits only 

incidentally or indirectly by the existence of a contract has 

no right to enforce that contract. Bryant v. Cole, 282 So. 2d 

652[, 654] (Fla. 2d DCA 1973).

....

[E]ven if the [breach of insurance contract] lawsuit would 

have been successful, the primary and direct beneficiary 

would only be the Insured[s], who would retain 80% of the 

lawsuit settlement. The Insured[s] would then be 

responsible to pay [the public adjuster], according to the 

[public adjuster’s agreement] [w]ith the Insured[s] – which is 

nothing other than a contract for a 20% commission.
11

As for the purported “tripartite relationship” to which a different 

circuit court referred in the separate discovery-related action, we see no 

evidence in the record to indicate that any such “tripartite relationship” 

existed, whether in the separate discovery-related action or the public 

adjuster’s third-party action. The public adjuster and its counsel should 

have known that this other circuit court’s mere reference to an undefined

“tripartite relationship,” was, standing alone, insufficient as a matter of 

law for the public adjuster to have constituted the material facts 

necessary to establish the third-party action’s claims or the application 

of then-existing law. 

At the very latest, the public adjuster, upon voluntarily dismissing its 

Count 3 for common law indemnification, should have withdrawn its 

Count 1 for breach of intended beneficiary contract and Count 2 for 

professional malpractice as well. See Matey v. Reinman, 599 So. 2d 201, 

202 (Fla. 2d DCA 1992) (“[A] third[-]party claimant must allege a claim 

for indemnification, subrogation or contribution before asserting any 

other claim against a third[-]party defendant.”); Delray Assocs. Ltd. v. 

Sabal Pine Condos., Inc., 402 So. 2d 1314, 1315-16 (Fla. 4th DCA 1981) 

(“Third[-]party liability is founded upon a right to contribution, 

subrogation, or indemnification.”).

B. Count 2 for Professional Malpractice

The public adjuster’s Count 2 for professional malpractice—which 

hinged upon its Count 1 for breach of intended beneficiary contract—

similarly was not supported by the material facts necessary to establish 

that claim or the application of then-existing law. As the law firm’s 

motions to strike and for section 57.105 sanctions argued, legal 

malpractice claims “are restricted to clients in strict privity with the 

attorney, except in one ‘narrow’ exception” which does not apply here—

where the third party is an “[i]ntended third-party beneficiar[y] of the 

engagement agreement .... Angel, Cohen & Rogovin v. Oberon Inv., N.V., 

512 So. 2d 192[, 194] (Fla. 1987).”

Here, the public adjuster was at most an incidental beneficiary, and 

not an intended beneficiary, of the legal services agreement between the 

law firm and the insureds. As with Count 1 for breach of intended

beneficiary contract, the public adjuster, at the very latest, should have 

voluntarily dismissed its Count 2 for professional malpractice upon 

dismissing its Count 3 for common law indemnification. See Matey, 599 

So. 2d at 202 (“[A] third[-]party claimant must allege a claim for 

indemnification, subrogation or contribution before asserting any other 

claim against a third[-]party defendant.”); Delray Assocs., 402 So. 2d at 
12

1315-16 (“Third[-]party liability is founded upon a right to contribution, 

subrogation, or indemnification.”).

C. Count 3 for Common Law Indemnification

The public adjuster’s Count 3 for common law indemnification—

which the public adjuster ultimately voluntarily dismissed after the “safe 

harbor” period had expired—also was not supported by the material facts 

necessary to establish that claim or the application of then-existing law. 

As the law firm’s motions to strike and for section 57.105 sanctions 

argued:

To state a claim for common law indemnity, a party must 

allege that [it] is without fault, that another party is at fault, 

and that a special relationship between the two parties 

makes the party seeking indemnification vicariously, 

constructively, derivatively, or technically liable for the acts 

or omissions of the other party. Tsafatinos v. Family Dollar 

Stores of Fla., Inc., 116 So. 3d 576, 581 (Fla. 2d DCA 2013)[.]

....

The [third-party action] contains no facts indicating that 

[the public adjuster] could be held vicariously, 

constructively, or technically liable for [the law firm’s] alleged 

negligence. In fact, [the public adjuster] alleged that [it] 

satisfied its duty to the Insured[s] “by handing the file over to 

[the law firm].” ...

[The public adjuster] was not retained to provide attorney 

services, nor could [it] ... as [it] [is] not licensed to practice 

law. [The public adjuster] could never be responsible for any 

law firm’s actions. ... 

(paragraph numbering deleted).

Furthermore, the legal services agreement between the law firm and 

the insureds was irrelevant to the public adjuster’s common law 

indemnification claim, which was not based upon any contract. 

Conclusion

Based on the foregoing, the public adjuster’s third-party action 

against the law firm, when initially filed—or, at the very latest, from 
13

when the public adjuster purportedly first saw the legal services 

agreement—was not supported by the material facts necessary to 

establish the third-party action’s claims or the application of thenexisting law, and did not present a good faith argument for the extension, 

modification, or reversal of existing law or the establishment of new law. 

Thus, the successor circuit court erred in denying the law firm’s section 

57.105 sanctions motion. We reverse that order, and remand for the 

circuit court to (1) grant the law firm’s section 57.105 sanctions motion,

and (2) set an evidentiary hearing to determine the sanctions amount to 

be paid by the public adjuster and its counsel to the law firm.

Reversed and remanded with instructions.

LEVINE and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.