Plaintiffs claim that Defendant has breached the contract for failure to pay for damages that allegedly occurred on June 6, 2022, to the insured property. Dissatisfied with Defendant’s coverage determination, litigation was initiated on January 5, 2023. In defense of this matter, Defendant was forced to engage in extensive Motion practice to include, motions compel Plaintiffs’ depositions, motions Plaintiffs’ responses to discovery requests and motions for entry upon land for its expert inspection in defense of the matter. Defendant filed its Motion for Summary Judgment for Plaintiff’s Failure to Comply with the Policy Terms and Conditions, to wit their failure to provide a Sworn Proof of Loss. Additionally, Defendant filed its Motion for Summary Judgment for Plaintiffs’ Failure to Give Immediate Notice of the Claim for Damages as Required under the Policy of Insurance. Furthermore, Defendant filed its Daubert Motion to Strike Plaintiffs’ Trial Expert or alternatively to Limit the Scope of his Testimony. All pending motions, including 11 motions in limine were set for hearing before the Court. One hour prior to the hearing, Plaintiffs filed a Notice of Voluntary Dismissal without Prejudice to avoid adjudication of the summary judgment hearings and Daubert Motion. Nikki Hawkins argued to the Court that there are limited exceptions to a plaintiff’s “absolute” right to take a voluntary dismissal as a matter of right: (1) if there is fraud on the court, (2) if the defendant can establish the common law exception to the right of voluntary dismissal, or (3) if the plaintiff dismisses the case at a stage which is deemed the equivalent of a summary judgment. The Court found that Plaintiffs had failed to file a response to Defendant’s summary judgment and they and their attorney had engaged in dilatory conduct during the pendency of the litigation and entered an Order of Final Dismissal with Prejudice and entitlement to attorneys fees and costs.
