10 Fla. L. Weekly Supp. 366e
Insurance — Failure to comply with pretrial order — Sanctions — Where insurer’s original pretrial catalogue failed to comply with court order, insurer failed to comply with order to file amended catalogue with stipulations of fact, and court finds failure to comply is not isolated incident, motion to strike insurer’s witness and exhibit list is granted — Because insurer has no evidence to present on remaining issue of failure of insured to appear for examination under oath, insured is entitled to judgment as matter of law — Insured would be entitled to judgment as matter of law even if insurer’s witnesses were not stricken because undisputed facts in insured’s statement of stipulated facts reveal that insurer was in breach of contract prior to and at time and date of scheduled examination under oath
CENTRAL MAGNETIC IMAGING OPEN MRI OF PLANTATION, LTD. (a/a/o Joachin Worshcel), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-1754 COCE. March 12, 2003. Linda R. Pratt, Judge. Counsel: Kenneth J. Dorchak, for Plaintiff. Emilio Stillo, for Defendant.
ORDER ON CALENDAR CALL AND STRIKINGDEFENDANT’S WITNESS AND EXHIBIT LIST ANDGRANTING JUDGMENT IN FAVOR OF THE PLAINTIFF
THIS CAUSE having come before the Court on February 21, 2003 on Calendar Call pursuant to the Court’s Pretrial Order and Order setting Jury Trial dated October 22, 2002, it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Defendant’s Witness and Exhibit List is Granted. The Court finds that the Defendant has failed to comply with this Court’s Order dated January 29, 2003 ordering the parties to file an amended pretrial catalogue with stipulations of fact. Furthermore, the Court finds that the Defendant’s original pretrial catalogue dated January 29, 2003 was not in compliance with the Court’s October 22, 2002 Pretrial order. The Court finds that the failure to comply with the Court’s pre-trial order is not an isolated incident for this Defendant, and the Court has no effective alternative sanction to compel compliance with its Orders.
The Court previously entered on January 17, 2003 a partial Summary Judgment, and further determined that the only issue remaining for trial was that of the Defendant’s defense of the failure of the insured to appear for an examination under oath. Since the Defendant has no evidence to present, the Plaintiff is entitled to a judgment as a matter of law. Therefore, the Court directs the Plaintiff to submit a final judgment in its favor awarding the PIP benefits in dispute together with statutory interest and determining that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs.
The Court further notes that the Defendant, through counsel, in an effort to avoid the above sanction, suggested that the Court’s sanction instead be that the Court accept Plaintiff’s statement of stipulated facts as set forth in the Plaintiff’s unilateral pre-trial stipulation. Those facts are undisputed. Accordingly the Court finds that based upon the facts as stated therein, the Defendant’s EUO defense must fail because the Defendant was in breach of the contract prior to and at the time and date of the scheduled examination under oath. See: Amador v. United Automobile Insurance Company, 748 So.2d 307 (Fla. 3rd DCA 1999). There being no issues of fact then left to be tried as to the EUO defense, the Plaintiff would be entitled to a judgment as a matter of law, even if defendant’s witnesses are not stricken.
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