12 Fla. L. Weekly Supp. 387d
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Default — Where over course of more than a year insurer has failed to comply with discovery rules and multiple court orders requiring discovery, insurer was unable to offer any explanation for continued failure to comply with orders other than understaffing of its own legal office, misconduct is not result of neglect or experience of attorney but is attributable to insurer’s disobedience, insurer has previously been sanctioned dozens of times by court, delay prejudiced medical provider by causing it to incur more attorney’s fees than claim itself, delay has created significant problems of judicial administration, and insurer failed to timely pay sanction which it had been advised was condition precedent to its continued defense, insurer’s pleadings are stricken and default judgment is entered against insurer
A1 MOBILE MRI, INC., (a/a/o Marcos Marmol), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-13760 COCE (53). February 8, 2005. Robert W. Lee, Judge. Counsel: Roberts J. Bradford, Fort Lauderdale, for Plaintiff. Emilio R. Stillo, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SANCTIONS, STRIKING DEFENDANT’S PLEADINGS, AND ENTERING DEFAULT JUDGMENT
THIS CAUSE came before the Court on February 4, 2005 for hearing of the Plaintiff’s Motion for Sanctions/Striking of Defendant’s Pleadings, and the Court’s having reviewed the Motion; heard argument; reviewed the relevant legal authorities; made a thorough review of the matters filed of record; and been sufficiently advised in the premises, the Court finds as follows:
This order is the fifth in a series attempting to obtain Defendant’s compliance with discovery rules and related court orders in this case. Because the Court finds that no viable alternative sanction exists to assure the Defendant’s future compliance, the Court grants the relief sought by Plaintiff.
Findings of Fact: On July 18, 2003, the Plaintiff filed its complaint for unpaid PIP benefits. On August 26, 2003, the Defendant had general counsel file its Notice of Appearance.
On August 25, 2003, the Plaintiff served upon Defendant a set of Interrogatories, as well as a Request for Production, a Second Request for Production, and a First Request for Admissions.
On September 12, 2003, the Defendant served upon Plaintiff its own First Request for Production of Documents.
On October 3, 2003, the Defendant filed a Pretrial Catalogue in which it specifically listed that it would be calling as a witness the “IME Doctor [to] testify as to the relatedness, medical necessity and reasonableness of any treatment.”
On October 7, 2003, the Plaintiff served upon Defendant a set of Expert Interrogatories. The same day, the Plaintiff served its Response to Request for Production.
By October 15, 2003, the Defendant had provided absolutely no response to the Plaintiff’s discovery requests. On that day, the Plaintiff filed its Ex-Parte Motion to Compel. The same day, the Honorable Kathleen Ireland entered her Order granting the Plaintiff’s Motion to Compel, providing that the Defendant “shall have ten (10) days from the entry of this Order in which to respond to the” discovery requests. A copy of this Order was mailed to defense counsel.
The Defendant failed to timely comply with Judge Ireland’s order.
Almost three weeks after Judge Ireland’s deadline, the Defendant served its Verified Answer to Interrogatories, Response to Plaintiff’s First and Second Requests for Production of Documents and Work Privilege Log. Although the Responses referred to several attachments, nothing in fact was attached. Additionally, the Work Privilege Log referred to was likewise not attached. The same day, the Defendant filed its Motion to Grant Relief from Admissions. In it, it set forth grounds as:
On or about May 27, 2003, the Office of the General Counsel/Trial Division opened its Broward Division in Fort Lauderdale. The office move disrupted the law firm’s operations for several days. Several hundreds of cases were transferred to the Broward Division attorneys. Because of the office move and ongoing transfer of cases, Defendant has a backlog of cases it is laboriously working to complete.
Defendant also states it has difficulty in timely responding to said Admissions within the prescribed time due to several other matters pending before Miami-Dade and Broward Counties, in which Defendant received over 150 requests for Admissions at one time.
On April 1, 2004, the Defendant filed its Answer and Affirmative Defenses. The Defendant set forth as an affirmative defense that the insured’s medical expenses “were not reasonable, related or necessary in that they were not incurred due to any injuries resulting from the incident set forth in the complaint.”
On June 8, 2004, the Plaintiff served its Ex-Parte Motion to Compel Answers to Discovery claiming that the Defendant had failed to provide any complete responses or objection to the Request to Produce, Second Request to Produce, and Interrogatories served almost nine months earlier. By this time, the Defendant still had not provided the attachments and work privilege log referred to in its response filed seven months earlier.
On June 14, 2004, Judge Herring entered an Order requiring complete responses to discovery within ten (10) days. Judge Herring also specifically ruled that the “Defendant has waived all objections save those based on privilege for failing to timely raise same.
By July 23, 2004, the Defendant still had not complied with Judge Herring’s June 14th Order. The Plaintiff served its first Motion for Sanctions/Striking of Defendant’s Pleadings on July 23.
Back on June 8, 2004, the Plaintiff had also served its Motion to Compel Better Responses to Expert Interrogatories. In it, the Plaintiff advised the Court that the Defendant had “objected to each and every expert interrogatory based on the overall number of interrogatories served to date.”
On August 2, 2004, the Court entered its Order on Plaintiff’s Motion to Compel Better Responses. The Court gave the Defendant 30 days to provide answers to the Plaintiff’s Expert Interrogatories. The Court also required the Defendant to file an Amended Answer and Affirmative Defenses.
The Defendant once again failed to comply with Judge Herring’s Order. On September 14, 2004, the Defendant served its Motion for Default by the Court due to Defendant’s failure to serve the required Amended Answer. An Amended Motion for Sanctions and the Motion for Default was set for hearing on October 12, 2004.
By the October 12, 2004 hearing, the Defendant still had not complied. On that day, Judge Herring entered an Order requiring that the Defendant comply within 20 days as to discovery, and pay sanctions of $1,000.00 within 30 days. Payment of the sanction was a “condition precedent to continued defense” of the case.
On November 1, 2004, the Defendant filed its Second Amended Answer and Affirmative Defenses. It also filed its Better Answers to Plaintiff’s Expert Witness Interrogatories stating summarily that they were “[n]ot applicable, as Defendant has no expert at this time.” This was done despite the fact that a year earlier the Defendant had specifically listed the IME doctor as a witness, and further specified that it is specifically defending the case based on the argument that the expenses were not reasonable, related or medically necessary.
By November 15, 2004, the Defendant still had not paid the $1,000.00 sanction ordered by Judge Herring, nor provided good faith responses to the Expert Witness Interrogatories. On November 15, the Plaintiff accordingly served its Second Motion for Sanctions/Striking of Defendant’s Pleadings. The matter was set before the Court for hearing for February 4, 2005.
On February 4, 2005, despite being almost three months delinquent, the Defendant still had not tendered the $1,000.00 sanctions nor provided good faith responses to Expert Interrogatories. At the hearing, the Defendant was unable to offer any explanation for its continued failure to comply with this Court’s multiple orders, over the course of well more than a year.
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, the sanction of dismissal was used by the trial court “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 in 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 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 disobedience. As stated 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 medical expenses of less than $1300.00. And yet, the Court is quite comfortable in concluding that Plaintiff has reasonably incurred far more fees than this in simply trying to get the information requested — information that it clearly has a right to obtain. At this point in this particular case, the Defendant’s actions have caused the Plaintiff to have to incur more attorney fees than the claim itself. 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. 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.
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. Indeed, 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.
As a separate ground, the Court notes that the Defendant was clearly placed on notice that its paying of the $1,000.00 sanction by November 12, 2004 was a condition precedent to its continued defense of this case. It failed to timely comply. The Defendant cannot now be heard to complain. Cf. Mondeja v. Cuevas, 583 So.2d 1115, 1116 (Fla. 3d DCA 1991); Smith v. Gunsaullus, 511 So.2d 1108, 1109 (Fla. 1st DCA 1987).
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 Defendant’s pleadings are hereby STRICKEN and a default judgment entered against the Defendant. The Court will also award fees and costs pursuant to statute. The Plaintiff is directed to submit a proposed judgment in the amount of $1219.00, and reserving jurisdiction to award fees and costs.
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