11 Fla. L. Weekly Supp. 885b
Insurance — Personal injury protection — Fraud on court — Sanctions — Striking pleadings — No abuse of discretion to strike insurer’s pleadings where insurer, with actual and constructive notice and knowledge, filed false motion for summary judgment predicated on adjuster’s misleading affidavit stating that medical provider could not seek reimbursement for medical bills because bills had not been submitted within 30 days of rendition of treatment based on statutory provision that insurer knew was not in effect at any time material to medical services provided
Cert. denied. 30 Fla. L. Weekly D607b
UNITED AUTO INSURANCE CO., Appellant, vs. HIALEAH MEDICAL ASSOCIATES, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 02-398 AP and 02-542 AP (Consolidated). L.T. Case No. 2001010001 CC 05. August 10, 2004. On appeal from the County Court for Miami-Dade County, Caryn Canner Schwartz, Judge. Counsel: Eric G. Belsky, for Appellant. Virginia M. Best, for Appellee.
(Before MARGARITA ESQUIROZ, ARTHUR ROTHENBERG, and MICHAEL A. GENDEN, JJ.)
(PER CURIAM.) In the court below, the Appellant, United Auto Insurance Company (“United Auto”) was found to have perpetrated a “fraud upon the court.” As a sanction, its pleadings were stricken. The basis for the claim of fraud was Appellant’s assertion, via a motion for summary judgment, that an outdated version of § 627.736(5)(b), Fla. Stat. (1998) barred the action of Appellee/Plaintiff below. Both the attorney, and the insurance adjuster, asserted in United Auto’s motion for summary judgment and affidavit that the Plaintiff could not seek reimbursement for medical bills because they had not been submitted within 30 days of the treatment being rendered. However, the thirty day rule contained in § 627.736(5)(b), Fla. Stat.(1998) only applies to claims arising from accidents occurring after October 1, 1998, and the accident in the instant case occurred on September 3, 1996. Had the misrepresentation of the law been and innocent error on the part of the attorney and adjuster, then no case for fraud could have been made. However, the adjuster admitted at his December 4, 2001 deposition that at the time he signed the affidavit he knew that the 1998 law did not apply. This kind of deliberate misrepresentation to the court warrants striking the perpetrator’s pleadings. United Auto filed, with actual and constructive notice and knowledge, a false motion for summary judgment predicated on a misleading affidavit of its adjuster, Mr. Plana. These action were taken in order to cause the trial court to enter a summary judgment against the Appellee based upon a statutory provision that United Auto knew was not in force, effect or even in existence at any time material to the medical services provided.
On June 13, 2002, the plaintiff responded to the motion for summary judgment, which was noticed for hearing after the deposition of the adjuster. At that time, the Appellee successfully moved to strike the Appellant’s/Defendant’s below pleadings. We find that under this set of circumstances, it is evident that the Appellant knowingly perpetrated a fraud upon the court and that the lower court did not abuse its discretion in striking its pleadings. See Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119 (Fla. 3d DCA 2000); Leo’s Gulf Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d DCA 2001); Metropolitan Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999); see also Mercer v. Raine, 443 So. 2d 944 (Fla. 1984). We hereby AFFIRM the lower court. (ARTHUR ROTHENBERG, J., concurs.)
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(MICHAEL GENDEN, J., dissents.) A trial court’s decision to impose sanctions, including the striking of pleadings and the entry of default, is generally reviewed for an abuse of discretion. Mercer v. Raine, 443 So.2d 944 (Fla. 1983); Young v. Curgil, 358 So. 2d 58 (Fla. 3d DCA 1978). However, “case law has narrowed a trial court’s discretion in cases involving dismissal for fraud.” Jacob v. Henderson, 840 So. 2d 1167 (Fla. 2d DCA 2003). “A more stringent abuse of discretion standard is appropriate because dismissal is an extreme remedy.” Id., citing, Young, 358 So. 2d at 59; Tri Star Invs., Inc. v. Miele, 407 So. 2d 292 (Fla. 2d DCA 1981).
The case of Millan v. Williams, 655 So. 2d 207 (Fla. 3d DCA 1995) is compelling. In Millan, as in the instant case, the appellant filed a false affidavit, and the appellee unsuccessfully attempted to have the appellant’s defenses struck by the lower court. The lower court found that the filing of a false affidavit did not constitute a basis for striking the appellant’s defenses. The appellant also moved for contempt, which was granted. Upon review, the lower court’s decision to abstain from striking defenses was upheld, but the finding of contempt was reversed because there was a lack of finding of any intention or willful perjury. Id. In this case, the adjuster admitting that he may have made a mistake when he signed his affidavit in support of summary judgment in his deposition. Such a statement belies the existence of intent or willfulness. Accordingly, it is suggested the striking of the appellant’s defenses in this case was too severe a sanction to impose for the filing of an affidavit, that was factually correct, yet set forth facts that supported an inapplicable statute.
It also appears that the lower court visited the sins of the attorney upon the client. Counsel, not the client is in charge of applying the facts to the law. Simply because the client in this case stated facts to support the application of an inapplicable statute, does not mean that such actions were deliberate and contumacious, thereby constituting a fraud upon the court. Factually, the affidavit was accurate. The attorney drafted both the affidavit of the adjuster and motion for summary judgment which the Appellee alleges forms the basis for fraud. The attorney, not the client, should be sanctioned for such conduct if the law was intentionally misrepresented to the court. In Rose, the court found that dismissal of the case based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that the court does not wish to promote. Rose v. Fiedler, 855 So. 2d 122 (Fla. 4DCA 2003). Rose urged court to reserve dismissal “. . . for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” In my opinion, an award of §57.105 fees or another, less severe, sanction would have been more appropriate. Accordingly, I dissent.
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