11 Fla. L. Weekly Supp. 1044a
Insurance — Personal injury protection — Discovery — Depositions — Failure to attend — Sanctions — Default — Appeal of order granting medical provider’s motion for default due to adjuster’s failure to attend deposition scheduled pursuant to order granting motion to compel after insurer had previously cancelled two depositions and informed provider that adjuster would not be available for five months — While it is apparent that trial court had basis to find adjuster’s failure to attend deposition was willful, court erred in entering order striking pleadings and granting default without express written finding of willful noncompliance
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, vs. PRESGAR MEDICAL IMAGING, INC., d/b/a CENTRAL MAGNETIC IMAGING, a/a/o WANDA RIOS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. September 28, 2004. Case No. 03-639 AP. L.C. Case No. 2001025582 SP 23. An Appeal from the County Court for Miami-Dade County, Judge Raphael Steinhardt. Counsel: Mark A. Gatica, for Appellant. Kimberly L. Boldt, Boldt Law Firm, and Buchalter, Hoffman & Dorchack, P.A., for Appellee.
(BEFORE ALEX E. FERRER, MANUEL A. CRESPO, and DAVID H. YOUNG, JJ.)
(DAVID H. YOUNG, J.) United Automobile Insurance Company (United Auto) appeals a default final judgment entered against it after its pleadings were struck for failure to comply with a court order. During the discovery phase of the case, the medical provider attempted to depose United Auto’s insurance adjuster, but after United Auto canceled two depositions and informed the medical provider that the adjuster would not be available for nearly five months, the appellee filed a motion to compel his deposition. The trial court granted the motion, stating in its order that “Failure to appear shall result in the entry of a default judgment upon motion by Plaintiff.” Despite the court’s order, the adjuster again failed to attend the scheduled deposition. The appellee moved to strike United Auto’s pleadings, and the trial court held a hearing at which United Auto provided no explanation as to why the adjuster failed to attend the deposition. At the hearing, the trial court found that the adjuster failed to attend because “he simply did not care.” The trial court then entered an “Order Granting Plaintiff’s Motion for Default Based Upon Defendant’s Contempt of Court Order Compelling Attendance of Adjuster at Deposition.” However, the order did not contain an express written finding of willful or deliberate refusal to obey the court’s order.
While it certainly is apparent from the history of the case that the trial judge had a sufficient basis to find that the failure to attend the deposition was willful and to grant the appellee’s motion to strike, case law requires that, in order for an order striking a party’s pleadings to be valid, there must be an express written finding of willful noncompliance. See, Commonwealth Federal Savings and Loan Association v. Tubero, 569 So. 2d 1271 (Fla. 1990); Mercer v. Raine, 443 So. 2d 944 (Fla. 1984). Therefore, we are bound to REVERSE the trial court and REMAND for actions consistent with this opinion. [Editor’s note: Order on remand published at 12 Fla. L. Weekly Supp. 780b.] The appellee’s motion for attorneys fees is DENIED. (ALEX E. FERRER and MANUEL A. CRESPO, JJ. CONCUR.)
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