10 Fla. L. Weekly Supp. 546b
Insurance — Discovery — Depositions — Failure to attend — Sanctions — Where insurer filed motion for protective order after plaintiff scheduled deposition but failed to set motion for hearing before deposition date, and deponent failed to appear at deposition, insurer is ordered to pay attorney’s fees to medical provider’s counsel — Amount of fees calculated
DANIEL J. MADOCK, D.C., P.A. (As Assignee of LYNN KUS), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 2002-4680 SC. Division H. May 12, 2003. Paul L. Huey, Judge. Counsel: Timothy A. Patrick, Timothy A. Patrick, P.A., Tampa. Michael J. Morelli.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FEES AND COSTS
THIS CAUSE having come before the Court on Plaintiff’s Motion for Fees and Costs on April 22, 2003, and both parties having appeared through counsel and the court having heard the argument of counsel, it is hereby:
ORDERED and ADJUDGED that:
1. That the Plaintiff scheduled the Deposition of Joyce Richardson for September 12, 2002 at 1:30 p.m. Plaintiff filed a Notice of Taking Deposition Duces Tecum to confirm said deposition.
2. That Defendant filed a Motion for Protective Order, but failed to set it for hearing.
3. That the deponent, Joyce Richardson, failed to appear for her scheduled deposition.
4. A Motion for Protective Order must be filed and heard prior to the pending discovery in order for the motion to have any effect. Generally, where a party fails to respond to discovery and does not give a sound reason for its failure to do so, sanctions should be imposed. Ford Motor Co. v. Garrison, 415 So.2d 843 (Fla. 1st DCA 1982).
5. That on September 18, 2002, Plaintiff’s counsel filed a Motion for Sanctions regarding Ms. Richardson’s non-appearance which was heard before the Honorable Cheryl K. Thomas on December 4, 2002.
6. On December 24, 2002, the Honorable Cheryl K. Thomas executed an Order granting Plaintiff’s Motion for Sanctions for Defendant’s failure to file/schedule a Motion for Protective Order prior to Joyce Richardson not appearing for deposition Judge Thomas did not make a ruling regarding the amount of attorney’s fees and costs to be awarded.
7. On April 22, 2003, Plaintiff’s Motion for Fees and Costs was heard.
8. On April 22, 2003, the Honorable Paul L. Huey awarded Jeffrey T. Coleman a reasonable hourly rate of $200.00 per hour.
9. Attorney Coleman had expended 1.6 hours in the matter. Computing 1.6 hours times $200.00 per hour results in a load star of $320.00.
10. On April 22, 2003, the Honorable Paul L. Huey awarded Timothy A. Patrick a reasonable hourly rate of $225.00 per hour.
11. Attorney Patrick had expended 2.1 hours in the matter. Computing 2.1 hours times $225.00 per hour results in a load star of $792.50.
12. That the Defendant shall pay to Plaintiff’s counsel $1,112.50 for attorney’s fees and costs incurred as a result of Plaintiff’s Motion for Sanctions. Defendant shall remit payment within ten (10) days of the date of this Order.
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