12 Fla. L. Weekly Supp. 987a
Insurance — Personal injury protection — Sanctions — Default — Where failure of insurer’s attorney to comply with discovery orders is not result of neglect or inexperience but due to overload of cases attributable to insurer, insurer has been sanctioned dozens of times, insurer was personally involved in disobedience of attorney who works exclusively for insurer, insurer offered no credible explanation for continually failing to comply with court orders and rules of discovery, delays by insurer have created significant problems of judicial administration by requiring that inordinate amount of judicial time be spent in handling motions to compel and motions for sanctions, and delay prejudiced medical provider by requiring provider to incur more attorney’s fees than claim itself, default is entered against insurer
A-1 MOBILE MRI, INC. (a/a/o Osvaldo Placeres), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-13666 COCE 53. July 25, 2005. Robert W. Lee, Judge. Counsel: Jorge Montero, Fort Lauderdale, for Plaintiff. Emilio R. Stillo, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR DEFAULT
THIS CAUSE came before the Court on July 25, 2005 for hearing of the Plaintiff’s Motion for Default, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:
1. On July 18, 2003, the Plaintiff filed its complaint seeking unpaid PIP benefits.
2. On or about September 19, 2003, the Plaintiff served its Interrogatories, Request for Production, and First Request for Admissions.
3. The Defendant did not respond as required by the Florida Rules of Civil Procedure. On October 20, 2003, the Plaintiff served its Ex Parte Motion to Compel Discovery and this Court entered an Order on November 1, 2003 compelling Defendant to file its response within 10 days.
4. The Defendant did not comply with this Court’s order. Rather, on December 5, 2003, the Defendant filed its Response to First Request for Production and Response to Request for Admissions, but did not file its response to Plaintiff’s Interrogatories.
5. On December 10, 2003, the Defendant filed its Verified Answers to Interrogatories.
6. On February 10, 2004, this Court entered its Order Requiring Status Reports. The Order required each party to submit within 15 days a Status Report detailing the procedural history of the case and outlining all affirmative defenses.
7. The Defendant did not comply with this Order. On March 26, 2004, the Plaintiff filed its Motion for Default or for Sanctions due to Defendant’s failure to comply.
8. On April 6, 2004, the Defendant filed its Status Report.
9. On June 10, 2004, this Court struck the Defendant’s Affirmative Defenses and provided twenty (20) days to amend.
10. On June 14, 2004, the Plaintiff filed its Motion to Compel Better Response to Discovery. This matter was set for hearing for October 11, 2004.
11. On October 11, 2004, this Court entered its Order Granting Plaintiff’s Motion to Compel Better Responses to Discovery, providing 40 days to respond, and directing that the Defendant file an Amended Answer within 10 days.
12. The Defendant did not complywith this Order. On March 28, 2005, the Plaintiff filed its Motion for Sanctions/Striking of Defendant’s Pleadings, and a Motion for Default by the Court. Notwithstanding this Motion, the Defendant continued to fail to comply with Judge Herring’s Order of October 11, 2004.
13. On May 5, 2005, the Defendant filed its Motion to Grant Relief from Admissions. The matter was set for hearing for May 27, 2005.
14. On May 27, 2005, the Defendant filed its Amended Answer and Affirmatative Defenses, more than 7 months after the deadline provided in Judge Herring’s Order of October 11, 2004.
15.On May 27, 2005, the Defendant filed its Better Answers to Interrogatories, more than 6 months after the deadline provided in Judge Herring’s Order of October 11, 2004.
16. On May 27, 2005, the Plaintiff filed its Motion for Default based on Defendant’s continued failure to comply with the remaining portions of the October 11, 2004 Order.
17. On May 31, 2005, the Defendant filed its Better Responses to Request for Production of Documents, once again more than 6 months after the deadline provided in Judge Herring’s Order of October 11, 2004.
18. On June 7, 2005, the Defendant filed its Better Answers to Expert Witness Interrogatories, more than 6 months after Judge Herring’s deadline.
19. The instant motion was set for hearing for July 25, 2005. At the hearing, the only explanation offered by Defendant was the number of cases being handled, and docketing errors. The Defendant offered absolutely no legitimate excuse for failing to timely comply with the Rules of Civil Procedure and this Court’s Orders.
Conclusions of Law: The appropriate analysis for determining whether to enter a default judgment as a sanction is, in this Court’s view, set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994), as recently addressed by the appellate court in American Express Co. v. Hickey, 869 So.2d 694 (Fla. 5th DCA 2004). Although these cases deal with dismissals with prejudice as a sanction, the effect of a default judgment as a sanction is the same: either action disposes of the case. The Florida Supreme Court has set forth some principles for addressing the matter, and some guidelines for determining whether such a sanction is appropriate. These principles include whether the purpose of the Florida Rules of Civil Procedure is being upheld, i.e., “to encourage the orderly movement of litigation.” Another principle is that the client should not generally be punished for unilateral action of its attorney. Additionally, the analyzing court should consider whether “a sanction less severe than dismissal [or default] appears to be a viable alternative.” Kozel, 629 So.2d at 818. In deciding whether these principles are being upheld, the Supreme Court set forth six guidelines for a trial court to use:
(1) whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or experience;
(2) whether the attorney has been previously sanctioned;
(3) whether the client was personally involved in the act of disobedience;
(4) whether the delay prejudiced the opposing party through undue expense;
(5) whether the attorney offered reasonable justification for noncompliance; and
(6) whether the delay created significant problems of judicial administration.
Id. These guidelines were reiterated by the Fifth District Court of Appeal in American Express, 869 So.2d at 695.
In Kozel, as in American Express, thesanction of dismissal was used by the trial curt “based solely on the attorney’s neglect.” The Supreme Court directed that the trial court reconsider this sanction in light of the above guidelines. Id.; American Express, 869 So.2d at 695. In American Express, however, the appellate court emphasized that “sanctions other than dismissal are appropriate in those situations when the attorney, and not the client, is responsible for the error.” 869 So.2d at 695 (emphasis added).
The above guidelines are just that, guidelines. The Florida Supreme Court has, in other cases, offered additional matters for a trial court to consider. When a sanction is entered as the result of failure to comply with a court order, the Supreme Court has held that “[a] deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions [dismissal or default . . .], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) (emphasis added). Against this background, this Court will consider the record in this case as it pertains to the Defendant, United Automobile Insurance Company.
Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or experience. The Court finds that the misconduct at issue lies at the feet of the Defendant itself; i.e., the client. This factor is more specifically addressed in the following paragraph. The Court specifically finds that the misconduct is not the result of neglect or experience of the attorney. The attorney handling this particular file clearly has an overload of cases himself.
Whether the attorney has been previously sanctioned. Because the sanction of a default judgment is a severe sanction, the Court will go beyond the attorney in this case and consider this guideline as it pertains to the client itself. This particular Defendant has been sanctioned dozens of times by this Court alone. Having now handled two different civil divisions and having had the opportunity to review hundreds of files from predecessor judges, the undersigned judge is also personally aware that this Defendant has been sanctioned dozens of times by other judges for similar conduct. The Defendant itself, and not its attorneys, has paid thousands of dollars is sanctions. The client itself then must clearly be aware of the misconduct. And yet, the sanction of fees alone has been unable to remedy the Defendant’s misconduct. It is clear to this Court that if the Defendant is not intentionally attempting to ignore court orders, it is certainly acting with “gross indifference” or “deliberate callousness” in seeking to comply. See Mercer, 443 So.2d at 946. Moreover, the attorneys work directly for the client’s Office of the General Counsel. They have no clients other than United Automobile Insurance Company.
Although the Court cannot make an exhaustive list of sanctions and/or compel orders it has issued against this Defendant in other cases, the Court has been able to compile a representative list from a cursory review of its own “Order” file kept in chambers, as well as a review of clerk files currently in the judge’s office, which include:
· Order Granting Plaintiff’s Second Motion to Enforce, to Strike and for Additional Sanctions, and Order of Default, Case No. 03-22990 COCE 53, May 9, 2005 (noting Defendant’s continued failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Fifth Motion for Sanctions/Striking of Defendant’s Pleadings, and Entering Default Judgment, Case No. 98-20254 COCE 53, Apr. 12, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Fifth Motion for Sanctions/Striking of Defendant’s Pleadings, and Entering Default Judgment, Case No. 98-20254 COCE 53, Apr. 12, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Motion to Strike Defendant’s Pleadings, Enter Default, and Default Judgment, Case No. 04-13524 COCE 53, Feb. 9, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Motion for Sanctions, Striking Defendant’s Pleadings, and Entering Default Judgment, Case No. 03-13760 COCE 53, Feb. 8, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned in the amount of $1000, which it failed to timely pay).
· Order Granting Plaintiff’s Motion to Compel, Case No. 04-3524 COCE 53, Jan. 18, 2005.
· Order Compelling Discovery, Case No. 03-14131 COCE 53, Nov. 9, 2004 (Judge Herring).
· Order Granting Plaintiff’s Motion to Compel Supplemental Discovery, Case No. 04-63 COSO 62, Sept. 24, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Supplemental Interrogatories, Case No. 03-2257 COSO 62, Sept. 24, 2004 (awarding fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel, Case No. 03-14131 COCE 53 (Judge Herring).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-7457 COSO 62, Sept. 13, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 04-2651 COSO 62, Sept. 10, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Enforce Court Order, Case No. 03-2105 COSO 62, Sept. 2, 2004 (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-855 COSO 62, Sept. 2, 2004 (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion to Enforce Court Ordered Discovery, Case No. 03-2263 COSO 62, Sept. 2, 2004 (awarding sanctions of $500.00).
· Order to Compel Discovery, Case No. 04-3453 COSO 62, Aug. 23, 2004.
· Order Granting Plaintiff’s Motion to Compel Supplemental Discovery, Case No. 03-7344 COSO 62, Aug. 17, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Responses to Supplemental Discovery, Case No. 03-2257 COSO 62, Aug. 5, 2004 (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion for Sanctions, Case No. 04-3524 COCE 53, Aug. 3, 2004 (Judge Herring) (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-2105 COSO 62, July 30, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-2263 COSO 62, July 30, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Second Motion to Enforce Court Order, Case No. 04-1428 COSO 62, July 15, 2004 (awarding sanctions of $500.00 per day, plus additional $50.00 for each day not in compliance).
· Order of Default, Case No. 04-1428 COSO 62, June 10, 2004 (awarding sanctions of $250.00)
· Order Granting Plaintiff’s Motion to Compel, Case No. 04-3524 COCE 53, June 7, 2004 (Judge Herring).
Whether the client was personally involved in the act of isobedience. Asstated above, the Court finds that the client itself was and is personally involved in the act of disobedience in this case.
Whether the delay prejudiced the opposing party through undue expense. This case involves unpaid benefits of just over $1,000.00. And yet, the Court is quite comfortable in concluding that Plaintiff has reasonably incurred a commensurate amount of fees in simply trying to get the information requested — information that it clearly has a right to obtain in order to establish its claim at trial. At this point in this particular case, the Defendant’s actions may have caused the Plaintiff to have to incur more attorney fees than the claim itself. Although perhaps not true of a claim for a far greater amount, further defense of this claim is simply not warranted.
Whether the attorney offered reasonable justification for noncompliance. The Defendant has offered no credible explanation as to why it has continually failed to comply with this Court’s orders or the rules of discovery. The Court finds that none exists. The Defendant cannot create the problem by consistently providing an apparent insufficient number of attorneys and staff to handle its cases, and then try to claim as an excuse that its attorneys have too much work. The excuse used by the attorney in this case has been used dozens of times before, and yet little has changed.
Whether the delay created significant problems of judicial administration. It is no secret that United Automobile has hundreds of cases pending in the civil division of the Broward County Court. And yet, the undersigned judge has to spend an inordinate amount of time with this party, particularly when compared to other similar cases involving the same type of dispute against other insurers. Much of this Court’s attention is drawn to motion practice involving motions to compel and motion for sanctions against United Automobile, the great majority of which have later been determined to be meritorious. Notwithstanding that these are county court cases, this Court’s own administrative office has advised the Court that it has more than thirty (30) cases involving United Automobile Insurance Company as a defendant that are more than two years old, clearly beyond the guidelines set forth in the Rules of Judicial Administration. In deed, some are more than five years old. As for this particular case, the Court has had to spend more than a day on this file alone to research and draft this Order, in addition to the time spent at the hearing.
In sum, this Court sees no viable alternative sanction in this particular case. Perhaps the Defendant will begin to take the steps necessary to insure that the Florida Rules of Civil Procedure and orders of the court meet with consistently prompt and complete compliance. Perhaps the Defendant will begin to see that dilatory conduct will not meet with tacit approval by the court. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion is GRANTED. A default is hereby entered against the Defendant. The Plaintiff is hereby directed to submit a proposed Final Judgment to the Court conforming to the terms of this Order.
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