10 Fla. L. Weekly Supp. 923a
Insurance — Discovery — Depositions — Failure to comply — Sanctions — Where insurer’s counsel gave numerous instructions not to answer questions during deposition of claims adjuster without citing specific privilege, parties are ordered back to deposition, and insurer is ordered to pay medical provider’s attorney’s fees and costs for time expended on deposition and motion for sanctions — Because rule does not specifically authorize fee award to be paid by attorney personally, insurer alone will pay fee award
PHYSICAL MEDICINE CENTER, INC. (As assignee of Timothy Baitinger), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 02-24666-SC, Division I. July 9, 2003. Charlotte Anderson, Judge. Counsel: Timothy A. Patrick, Timothy A. Patrick, P.A., Tampa. Alan Scharf.
ORDER GRANTING PLAINTIFF’S MOTION FOR SANCTIONS
THIS CAUSE having come before the Court on May 8, 2003, on Plaintiff’s Motion for Sanctions, both parties appearing through counsel and the Court having heard argument of counsel, the court makes the following findings:
(1) Plaintiff’s Motion for Sanctions alleges, among other things, that defense counsel made numerous instructions not to answer certain question during a deposition of Defendant’s claim adjuster, while not citing any specific privilege.
(2) The objections by defense counsel were not clear and seemed designed to impede the progress of the deposition. Defense counsel’s speculation as to what Plaintiff’s counsel might be doing might be the basis of some other type of motion in the future, but it did not give a proper basis to direct the deponent not to answer.
(3) The parties are ordered back to deposition.
(4) If defense counsel has a clear objection as to privilege, then the deponent may be directed not to answer.
(5) Defendant is ordered to pay Plaintiff’s counsel’s attorney’s fees and costs. Defendant shall pay for counsel’s time at the deposition, the time spent preparing and filing Plaintiff’s Motion for Sanctions, all time in today’s proceeding including preparation time, the cost of the court reporter and the costs of the previous deposition transcript.
(6) The court ordered a reasonable amount of time to determine the amount of time and the hourly rate to be determined by both counsel. The parties stipulate based upon the court’s ruling that the court awards Plaintiff’s counsel 4 hours of attorney time at the rate of $225.00 per hour, as well as costs of $171.05, which totals $1,071.05.
(7) The court further finds that it is not going to allow the delay that seems to be happening. The rules of procedure, the rules of discovery are designed to clarify the issues. We do not have trial by ambush in Florida. Absent privilege and a finding of that the Plaintiff is seeking discovery that is not calculated to lead to admissible evidence and is doing so knowingly, then proper sanctions will be imposed. Neither side will be allowed to impede the progress of this case.
(8) The court hopes not have to appoint a referee, but if one must be appointed, the court will order which ever party is deemed responsible for that necessity to pay for it.
(9) The court finds that the opposition to the motion was unjustified. The rule does not specifically authorize an award of attorney’s fees to be paid by the attorney personally. Thus, the Defendant alone will pay the award of sanctions to Plaintiff’s counsel.
It is hereby:
ORDERED and ADJUDGED:
Plaintiff’s Motion for Sanctions is hereby GRANTED.
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