10 Fla. L. Weekly Supp. 862a
Insurance — Personal injury protection — Discovery — Failure to comply — Where insurer had insured’s application for PIP benefits for prior accident in its possession at time of discovery request for entire PIP file including applications, and insurer did not produce application, which it allegedly did not realize it had, insurer’s discovery response was not complete at time it was made — Test of completeness is not subjective test based on what documents insurer realized it had but objective test of what documents were in insurer’s possession — No merit to insurer’s argument that it had no duty to supply application because it was not under continuing duty to supplement response to request to produce where original response was not complete — Error to find that failure to produce application was cured by disclosure of existence of application by insurer’s exhibit list where generic entry for “PIP file” did not disclose existence of application — Entry for impeachment exhibits did not disclose existence of application where, although it was foreseeable by insurer from insured’s deposition that insurer would use application to impeach insured’s testimony about prior injuries, insurer’s counsel never disclosed existence of application to insured’s counsel and misrepresented to insured’s counsel that he would only be using medical records, photographs of insured’s car, and the insurance policy, lulling insured’s counsel into believing no other documents existed and not examining insurer’s exhibits — Although application was document insured had filed, where insured never remembered filing application and did not remember what injuries she listed, there is surprise in fact requiring new trial
CECILE M. HERNANDEZ, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-217 AP. L.T. Case No. 99-312 SP 25. September 2, 2003. On appeal from the County Court for Miami-Dade County, Teretha L. Thomas, Judge. Counsel: Adam H. Lawrence, Lawrence and Daniels, Miami, for Appellant. Frances F. Gruasch, Luis E. Ordonez and Associates, Miami, for Appellee.
(Before JOSEPH P. FARINA, RONALD DRESNICK, and JERI B. COHEN, JJ.)
(FARINA, J.) This is an appeal from an order denying Appellant’s request for a new trial stemming from an action for personal injury protection (PIP) benefits. For the reasons discussed below, we reverse the trial court’s ruling, remand this case for a new trial, and direct the trial court to assess reasonable attorney’s fees in favor of Appellant pursuant to § 627.428, Fla. Stat. (2001).I
Appellant was involved in a car accident in 1998 where she suffered injuries that included, among other things, suspected nerve damage that radiated down her legs and ankles. She sued her insurance carrier, Appellee, for refusing to pay for nerve conduction tests that her physician ordered.
At her deposition, Appellant testified that she did not remember having had prior injuries or problems with her legs, despite being in a car accident in 1996. Armed with this information, Appellee investigated the 1996 accident and discovered that Appellant had indeed filed a claim for PIP benefits wherein she listed her injuries as including “tingling in her legs.” Appellee was able to locate the PIP benefits application (Application) because it was her auto insurance carrier during the 1996 accident as well.
During discovery, Appellant sought to obtain Appellee’s PIP file concerning her. A request for production was propounded seeking the entire PIP file. Appellee produced the file, but withheld the Application. At the time the request for production was propounded, Appellee alleged it was not aware it had the Application. It later discovered the Application, but never produced this document to Appellant.
As the trial date neared, the trial judge issued a pretrial order directing the parties to exchange exhibit lists. They complied, however, Appellees failed to list the Application. Appellee’s exhibit list did have an entry for impeachment exhibits and one for the PIP file concerning the Plaintiff, but the entries did not detail what specific documents were covered under these entries. Appellee’s counsel also misrepresented to Appellant’s counsel that the Application did not exist. This fact, combined with Appellant’s memory lapse regarding the 1996 accident, and the failure to produce the Application or list it as an exhibit, caused Appellant and her counsel to be ignorant of the existence of the Application.
At trial, Appellant was cross-examined on whether she previously had an injury to her legs. She answered in the negative. However, upon being impeached with the Application over her attorney’s objection, she testified that she did remember having leg injuries from the 1996 accident. Appellee also used the Application to cross-examine Appellant’s expert medical witness, forcing him to concede that he may have testified differently had he known about the prior accident. Appellee referred to the Application during its closing argument, stressing Appellant’s prior accident and injuries to undermine the injuries from the subject accident.
During deliberation, the jury sent several notes with questions regarding the Application. They were obviously interested in the Application and the injuries Appellant received from the 1996 accident. After the trial judge told them to rely on their own memories regarding what was said, they continued to deliberate. They ruled for the Appellee and Appellant moved for a new trial on the grounds that she was ambushed because the Application was never produced prior to trial.
At a post-trial hearing, the trial judge stated she was troubled by what happened, but that the lapse in discovery had been cured because Appellee stated that its exhibit list, specifically the entries for impeachment exhibits and the PIP file concerning the Plaintiff, disclosed the existence of the Application. Appellee also alleges that it would have shown the Application to Appellant if only Appellant had asked to see the exhibits. The trial judge also agreed with Appellee’s assertion that there was no duty to supplement its discovery response.
We review this matter using the abuse of discretion standard. Brown v. Estate of Stuckey, 749 So. 2d 490, 497-98 (Fla. 1999); Pathway Financial v. Miami Intern. Realty Co., 588 So. 2d 1000, 1004 (Fla. 3d DCA 1991).II
It is well-settled in Florida that courts do not allow trials by ambush. Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981); Gonzalez v. State, 777 So. 2d 1068, 1069 (Fla. 3d DCA 2001); Florida Marine Enterprises v. Bailey, 632 So. 2d 649, 652 (Fla. 4th DCA 1994). The general policy of full and open disclosure underlying Florida’s rules of discovery are to eliminate surprise, to encourage settlement, and to assist in arriving at the truth. Binger, 401 So. 2d at 1313 (citations omitted).
A proper analysis begins with Appellant’s request for production. In it, Appellant sought a multitude of items, but those that are important to the court are numbered paragraphs 2 and 12. They address Appellee and seek:
2. The entire PIP file maintained by you or anyone on your behalf with regard to the Plaintiff, cover to cover, including original jackets and everything contained within the file, including, but without limitation:
* * *
(f) Any and all PIP forms, including PIP applications, medical report forms, employer verification forms, authorization forms and any other forms, contained in said file; and,* * *
12. Copies of any and all forms, correspondence, or reports received by your [sic] or any of your agents on your behalf concerning the Plaintiff’s medical condition from anyone.
Thus, there was a request to produce the Application which should have been properly addressed.
Appellee cites Fla. R. Civ. P. 1.280(e) for the proposition that it did not need to supply the Application because it was not under a continuing duty to supplement its response to the request to produce. Rule 1.280(e) states: “A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired”(emphases added). The salient point here is that Appellee’s response was not complete at the time it was made. Rule 1.280(e) plainly states that there is no duty to include information that is “thereafter acquired,” meaning that information already possessed must be turned over in order for the response to be complete. Appellee admits that it had the document in its possession when it responded to the request for production. Appellee’s argument misses the issue because its failure to produce the Application breached its original duty — not a continuing one.
Appellee’s argument is essentially that its response to the request to produce was complete when it was made because Appellee did not realize it had the Application. This argument urging the court to use a subjective test based on Appellee’s mindset cannot stand as there has been no authority cited for such a proposition. The test for whether a response to a discovery request is complete should not be subjectively based on what Appellee “knew” at the time it responded, but rather should be the objective test of whether the response was actually complete. In this case, it was not because Appellee had the Application in its possession when it responded to the request for production. To rule otherwise would open the door to discovery abuses whereby litigants could simply feign ignorance when responding to discovery requests. Accordingly, we find that Appellee should have produced the Application after it realized it had the document in its possession. Our conclusion disavows the practice of trial by ambush and upholds well-settled Florida public policy.III
The trial court, however, found that the failure to produce the document was cured by Appellee’s exhibit list which purportedly disclosed the existence of the Application. We disagree and find that a proper cure would have been to produce the Application. It is incongruous to find that Appellee disclosed the existence of the Application based upon an entry in its exhibit list for the PIP file on Appellant. This is because Appellant had asked for the entire PIP file in its request to produce and did not receive the Application as part of the response. If the words “entire PIP file” Appellant used in her request did not force production of the Application, it was unreasonable for the trial court to conclude that the words “PIP file” used in the exhibit list disclosed the existence of the Application. If it was indeed part of the PIP file, it should have been produced in the first instance when the entire PIP file was requested, or when Appellee realized it had the document.
It was also unreasonable to conclude the impeachment exhibits entry on the exhibit list cured the inadequate discovery response. Appellee knew what Appellant’s testimony would be, namely that she did not suffer injuries to her legs, because that was her deposition testimony. Thus, it was foreseeable to Appellee that the Application would be used at trial to impeach Appellant. Yet, Appellee’s counsel never apprised Appellant’s counsel of the existence of the Application. Even worse, in at least two prior pretrial conversations between opposing counsel, Appellee’s counsel misrepresented to Appellant’s counsel that he would only be using Appellant’s medical record from the subject accident, photographs of Appellant’s car, and the subject insurance policy. Appellant’s counsel was told that no other documents were to be used. Because of these facts, Appellant’s counsel was lulled into believing the Application did not exist and into not examining Appellee’s exhibits.
In summation, we find that the exhibit list provided no cure because it never apprised Appellant that the Application existed. The inescapable conclusion from the facts of this matter is that Appellee’s counsel knew what Appellant’s testimony was going to be and laid in waiting with improperly withheld information. This information was used to blindside Appellant, her medical expert, and was stressed in Appellee’s closing arguments — materially affecting the outcome of the trial.IV
Appellee argues that it never intended to use the Application, but did so only because Appellant was untruthful about the injuries to her legs. This is disingenuous as Appellee’s counsel knew what Appellant’s testimony was going to be through her deposition. It was foreseeable that the Application would be used to impeach her. The Florida Supreme Court’s ruling in Binger serves as an invaluable guidepost in this matter. The Binger court held that a pretrial order directing parties to exchange witness names requires that parties provide names of all foreseeable witnesses. Binger, 401 So. 2d at 1313. Appellant should have produced the Application or directly disclosed the Application in the exhibit list as it was foreseeable that Appellant would be impeached via the Application. The Binger court also held that general references to witnesses in a witness list, like the generic listing of entries on the exhibit list here, were inadequate. Id. In granting a new trial, the Binger court concluded that the only justification for not disclosing the witness’s name was to use that witness to impeach the other side’s expert witness as a surprise tactic. Binger, 401 So. 2d at 1314. We are satisfied that this is what occurred here.
Because surprise is the chief reason for granting a new trial under Binger, Appellee also argues that Appellant cannot claim surprise because the Application was a document she filed. This belies the language in Binger which granted a new trial because of a “surprise in fact.” Binger, 401 So. 2d at 1314 (emphasis added); see also Dos Santos v. Carlson, 806 So. 2d 539, 541 (Fla. 3d DCA 2002) (citing Binger); Tetrault v. Fairchild, 799 So. 2d 226, 240 (Fla. 5th DCA 2001) (citing Binger). Appellant never remembered filing the Application, and she did not remember what she listed as her exact injuries. Her lapse in memory is supported by the fact that she never advised her counsel about the Application. Appellant and her counsel were caught off guard when the Application was produced on cross-examination, prompting an objection that was overruled. They were surprised because the Application had been requested through discovery but never produced. The “surprise in fact” standard is fair and reasonable because ordinary people are susceptible to memory lapses. The function of a trial is not to ambush those who forget, but to flush out the real issues for the judges and juries in order to effectuate finding the truth. Appellees argument here has no merit.
Accordingly, we reverse the decision of the trial court and remand this matter for a new trial. In addition, the trial court shall assess reasonable attorney’s fees against Appellee pursuant to § 627.428, Fla. Stat. (2001). (DRESNICK and COHEN, JJ., concur.)
* * *
