12 Fla. L. Weekly Supp. 947b
Insurance — Personal injury protection — Fraud on court — Sanctions — Dismissal — Where plaintiffs in PIP action for injuries allegedly sustained in accident involving phantom vehicle misrepresented material information regarding their involvement in previous accidents, previous injuries sustained, prior litigation and information that would facilitate discovery, complaint is dismissed with prejudice
ANA SUAREZ & ROSA GONZALEZ, Plaintiffs, vs. JOHN DOE, ALLSTATE INSURANCE COMPANY, YASSEL GARCIA and JOAQUIN D. GARCIA, Jointly and Severally, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-07879 CA 24. July 13, 2005. Michael H. Genden, Judge. Counsel: Stephen M. Rosansky, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, for Defendant, Allstate Insurance Company.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT WITH PREJUDICE FOR FRAUD ON THE COURT
THIS CAUSE having come on to be heard on May 18, 2005 on Defendant, ALLSTATE INSURANCE COMPANY’S Motion to Dismiss with Prejudice Plaintiffs’ Complaint with Prejudice for Fraud on the Court, and the Court having considered the record, having heard argument of counsel and the court being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss with Prejudice Plaintiffs’ Complaint with Prejudice for Fraud on the Court is hereby GRANTED.
FINDINGS OF FACT
1. ANA SUAREZ (hereinafter “SUAREZ”) and ROSA GONZALEZ (hereinafter “GONZALEZ”) filed suit against ALLSTATE INSURANCE COMPANY (hereinafter “ALLSTATE”) and JOHN DOE seeking to recover benefits under the Uninsured/Underinsured Motorist provision of the subject policy of insurance, for injuries allegedly sustained in a motor vehicle accident purported to have occurred on July 11, 2000, involving a phantom vehicle.
2. Throughout the course of discovery both SUAREZ and GONZALEZ perjured themselves time and again by and through their sworn testimony and responses to written discovery on matters central to the issues in their lawsuit.
3. The misrepresentations and omissions of the Plaintiffs were so pervasive and material as to clearly and convincingly establish that both SUAREZ and GONZALEZ had sentiently set in motion an unconscionable scheme calculated to interfere with this Court’s ability to impartially adjudicate this matter by improperly influencing the trier of fact and unfairly hampering the presentation of Defendant’s defenses in this matter.
4. Plaintiffs’ claims are so wrought with misrepresentation and deceit that Plaintiffs could not even agree as to when they met, SUAREZ having testified that she knew GONZALEZ from childhood, growing up in Cuba. (Suarez Depo. p. 9:20-21) GONZALEZ provided the following contradictory testimony (Gonzalez Depo. p. 11:16-23):
Q: When did you first meet Ana Suarez?
A: When she arrived from Cuba she started working where I was working.
Q: Did you know each other in Cuba?
A: No.
Q: Did you know her before she started working at the same place you worked?
A: No.
5. The fraud perpetrated upon this Court was not limited to peripheral and seemingly innocuous issues such as when SUAREZ and GONZALEZ first met, rather Plaintiffs, misrepresented material information regarding issues including but not limited to their involvement in previous motor vehicle accidents; previous injuries sustained; prior litigation and information that would facilitate discovery, a prime example of which is GONZALEZ’S testimony that she had never been known in the United States by her maiden name, “Rosa Castillo” (Gonzalez Depo. p. 54: 9-18), when in fact GONZALEZ had made several insurance claims under her maiden surname as evidenced by the record.
6. Both SUAREZ and GONZALEZ have misrepresented and or intentionally omitted involvement in several previous motor vehicle accidents, most of which both Plaintiffs were involved in and many of which have claims submitted under GONZALEZ’S maiden name, Rosa Castillo.
7. Through due diligence, ALLSTATE was able to determine that both SUAREZ and GONZALEZ have a significant history of motor vehicle accidents, injury and personal injury claims despite express denials of same by and through responses to written discovery and oral testimony.
Previous Motor Vehicle Accidents
8. Despite responding to ALLSTATE’S Request for Admissions served on May 7, 2004, wherein SUAREZ denied being involved in one (1) or more motor vehicle accidents prior to the subject accident” it was found otherwise. (Suarez Response to Request for Admissions # 17.)
9. On April 30, 1991, both GONZALEZ (then Castillo) and SUAREZ lived in Elizabeth, New Jersey. During a trip to Miami, the ladies were involved in a motor vehicle accident, wherein SUAREZ claims to have been cut off by another vehicle which ultimately impacted the vehicle in which Plaintiffs were traveling.
10. On December 22, 1993, both SUAREZ and GONZALEZ (then Castillo) were involved in another motor vehicle accident, this time in Opa Locka, Miami-Dade County, Florida. Both ladies were taken to Aventura Hospital, treated by Alejandro D. Platon, D.C. of Interactive Medical Services, Inc., where GONZALEZ treated for low back pain with radiation into her right leg as well as occasional neck and upper back discomfort, received Nerve Conduction Studies and Somato Sensory Evoked Potentials, being discharged with a 10% permanent partial disability rating.
11. On October 13, 1994, once again both ladies were involved in a motor vehicle accident while in Hollywood, Florida wherein both SUAREZ and GONZALEZ claimed to have sustained injuries.
12. In a final prelude to the subject accident in July of 2000, GONZALEZ was involved in yet another motor vehicle accident (March 16, 1998), wherein she was the back seat passenger in a vehicle owned by SUAREZ, which was purportedly struck in the rear by a phantom vehicle on Biscayne Boulevard at the intersection of 3rd Street in Miami, Florida. GONZALEZ was again seen at Aventura Hospital’s emergency room and began treating the very next day with Jose A. Pelayo, D.C. for pain in her neck, left shoulder and left arm.
Pre-Existing Conditions and Prior Injuries
13. In the present matter, SUAREZ claimed to have sustained severe injury to her cervical spine with radicular symptoms in her left shoulder and localized low back pain, while GONZALEZ claimed to have sustained injury to her cervical and lumbar spine with radicular symptoms in her right hip and pain in her right wrist.
14. Plaintiff, SUAREZ, who has collected social security disability benefits for several years, answered Defendant’s Interrogatory # 6, “Were you suffering from physical infirmity, disability, or sickness at the time of the incident described in the complaint?” with the following response: “To the best of my recollection, no.”
15. Further, Plaintiff SUAREZ denied having any neck pain prior to the subject accident (Suarez Depo. p. 14:24 through p. 15:1).
16. In the deposition of SUAREZ taken on July 27, 2004, the plaintiff was questioned in depth regarding her prior medical condition and any accident or claims for injuries she may have had in the past. While SUAREZ did admit that she had in fact suffered an injury to her knee as the result of a slip and fall accident occurring in the common area of her rental apartment, for which she filed suit and recovered $25,000.00 in settlement, SUAREZ admitted no other accidents, injuries or claims.
17. In fact, secondary to a motor vehicle accident on December 22, 1993, both SUAREZ and GONZALEZ (then Castillo) were taken to Aventura Hospital, treated by Alejandro D. Platon, D.C. of Interactive Medical Services, Inc., where GONZALEZ treated for low back pain with radiation into her right leg as well as occasional neck and upper back discomfort, received Nerve Conduction Studies and Somato Sensory Evoked Potentials, being discharged with a 10% permanent partial disability rating.
18. On October 13, 1994, once again both ladies were involved in a motor vehicle accident while in Hollywood, Florida wherein both SUAREZ and GONZALEZ claimed to have sustained injuries, and again on March 16, 1998, GONZALEZ was again seen at Aventura Hospital’s emergency room and began treating the very next day with Jose A. Pelayo, D.C. for pain in her neck, left shoulder and left arm.
Prior Litigation
19. Plaintiff, SUAREZ also denied under oath: (a) making a homeowner’s claim in New Jersey; (b) being involved in another hit and run accident; (c) being party to previous lawsuits; or (d) suffering from food poisoning while a passenger on Amtrak. (Suarez Depo. pp. 68-72)
20. While SUAREZ did admit that she had in fact suffered an injury to her knee as the result of a slip and fall accident occurring in the common area of her rental apartment, for which she filed suit and recovered $25,000.00 in settlement, SUAREZ admitted no other accidents, injuries or claims, which is clearly not true.
21. In fact, SUAREZ retained the services of attorney John Ruiz, Esq. to represent her in a claim against Amtrak for food poisoning allegedly contracted while riding from Miami to Virginia on September 10, 2003, for which she demanded $150,000.00 in settlement.
22. The misrepresentations and omissions made by Plaintiffs herein are too numerous to enumerate, suffice it to say, this Court finds that Plaintiffs have perpetrated a fraud upon this Court. Accordingly, they shall not be allowed to use the judiciary in this manner to facilitate their fraudulent motives.
CONCLUSIONS OF LAW
This Court does not look kindly upon fraud and attempts to perpetrate same in legal proceedings. That cheaters should not be allowed to prosper has long been central to the moral fabric of our society and one of the underpinnings of our legal system. As litigants continue to misbehave in their quest for lucre at the expense of the truth, the Court has been empowered with the discretion of levying sanctions, which in turn have always been part and parcel of our legal system.
The basic standards governing fraud on the court are reasonably straightforward. As set forth in Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998) the requisite fraud on the court occurs where“it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”citing to Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992).
This Court finds support in the following cases, in addition to Cox v. Burke, confirming that use of dismissal with prejudice and default as a sanction is proper in this case. Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla. 1st D.C.A. April 28, 2003); Long v. Swofford, 805 So. 2d 882 (Fla. 3d D.C.A. 2003); Hogan v. Dollar Rent A Car Systems, Inc., 783 So. 2d 1211 (Fla. 4th D.C.A. 2001) (trial court’s dismissal of personal injury action was warranted because of plaintiff’s fraud regarding medical history); Morgan v. Campbell, 816 So. 2d 251 (Fla. 2d D.C.A. 2002); Cabrerizo v. Fortune International Realty, 760 So. 2d 228 (Fla. 3d D.C.A. 2000) (parties who are guilty of fraud or misconduct should not be permitted to employ the very institution they have subverted to achieve their end); Desimone v. Old Dominion Ins. Co., 740 So. 2d 1233 (Fla. 4th D.C.A. 1999) (trial court’s dismissal of action was justified because of plaintiff’s fraud during discovery); Baker v. Myers Tractor Services, Inc., 765 So. 2d 149, 25 Fla. L. Weekly D1561 (Fla. 1st D.C.A. 2000); Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119 (Fla. 3d D.C.A. 2000); Rosenthal v. Rodriguez, 750 So. 2d 703 (Fla. 3d D.C.A. 2000); Metropolitan Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d D.C.A. 1999); Hanono v. Murphy, 723 So. 2d 892, 895 (Fla. 3d D.C.A. 1998); Savino v. Florida Drive In Theatre Management, Inc., 697 So. 2d 1011 (Fla. 4th D.C.A. 1997); Mendez v. Blanco, 665 So. 2d 1149 (Fla. 3d D.C.A. 1996).
Plaintiffs, Ana Suarez and Rosa Gonzalez have misrepresented and/or omitted material facts about their involvement in prior accidents, previous litigation, medical history and even their relationship to one another, each of the foregoing can be viewed as material to Plaintiffs’ claim and the attempts to obscure same from discovery have interfered with this Court’s ability impartially to adjudicate this matter by and through Plaintiffs’ attempts to improperly influence the trier of fact and unfairly hamper the presentation of the opposing party’s defense. It is this kind of activity which occurred in Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla. 1st DCA April 28, 2003), and resulted in dismissal with prejudice of Plaintiff’s claim. In Destafano, the First DCA affirmed the dismissal with prejudice of an uninsured motorist’s claim for various false statements and omissions “on matters central to the issues in her lawsuit.” Four separate incidents of dishonesty were cited: 1) Plaintiff falsely claimed to have no injuries from a prior accident; 2) she failed to reveal a subsequent accident on multiple occasions; 3) she lied about the extent of her injuries from the accident at issue; 4) she also lied about prior similar injuries. As in Destefano, the plaintiffs in this matter have engaged in several acts of dishonesty and deceit, perpetrating a substantive fraud upon the court.
Regrettably, many people do not consider lying under oath about the nature and extent of their injuries or other facts pertinent to their lawsuits to be egregious misconduct. To many, it is simply the way the game is played. “Everybody does it,” according to this questionable train of thought, “so how bad can it possibly be?” This Court cannot agree with this ideology, and cannot agree that lesser sanctions such as bringing the fraudulent activity to the attention of the jury or monetary sanctions are sufficient. Simply allowing the opposing party to bring the transgression to the attention of the jury is hardly a “sanction.” That is nothing more than allowing highly relevant evidence to be heard by the jury. At a minimum, the court should be able to assure the aggrieved party that the guilty party’s misconduct will not be repeated and that the guilty party will not be allowed to profit by its misconduct. One possibility is to exclude from the trial the precise damage claim or defense pertinent to the offending testimony or conduct. Another is to subject the claim or defense involved to a higher standard of proof. Rarely will the assessment of a monetary sanction be sufficient to remedy the type of significant misconduct which approaches fraud on the court.
In Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 2003), plaintiff denied any preexisting back condition in connection with her negligence claim stemming from a rear end collision. Upon discovery of the preexisting condition defendant moved to dismiss the complaint for fraud. The trial court conducted a hearing; agreed that plaintiff had deliberately concealed her preexisting back condition; and dismissed her suit with prejudice for fraud on the court. The Third DCA affirmed. The notion that “intent” must be coupled with “acts” and “bad consequences” to gauge the seriousness of the offense and the punishment is sound to a point, but has less application in cases of “substantive fraud” than “procedural misconduct.” Missing a court ordered deadline for filing a pretrial stipulation rarely, if ever, warrants dismissal with prejudice no matter how willful it is found to be. Lying under oath at deposition or trial about a fact directly bearing on liability or damages can be sufficient, in and of itself, to warrant dismissal with prejudice. In the case of such substantive fraud, the success of the fraud should play less of a role, if any role whatsoever. As noted in Cox v. Burke:
Cox argues that the volumes of medical records defense counsel has found show that the defendants have not been hampered in their discovery. Apart from the irony of the argument that Cox should not be punished because she failed to deceive, it is impossible to know what defendants may not have found. The closer question raised by Cox is how material, pervasive or extreme such false statements or material omissions in discovery must be in order for the extraordinary measure of dismissal to be justified.
As Cox went on to explain, the right to seek redress in a court of law is not without duties. It is as much a privilege of citizenship as a right and can be forfeited. The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way. Although Cox insists on her constitutional right to have her case heard, she can, by her own conduct, forfeit that right. This is an area where the trial court is and should be vested with discretion to fashion the apt remedy.
As set forth in Rosenthal v. Rodriguez, 750 So. 2d 703, 704 (Fla. 3d DCA 2000), courts throughout this state have repeatedly held “that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends.” Metropolitan Dade County v. Martinsen, 736 So. 2d 794, 795 (Fla. 3d DCA 1999) (quoting Hanono v. Murphy, 723 So. 2d 892, 895 (Fla. 3d DCA 1998)); see also Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998); O’Vahey v. Miller, 644 So. 2d 550, 551 (Fla. 3d DCA 1994); Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992).
Predicated on this Court’s findings of fact as set forth above, and in reliance upon the precedent cited herein, Plaintiffs’ claims are hereby dismissed with prejudice. Plaintiffs, ANA SUAREZ and ROSA GONZALEZ, shall take nothing by this action and shall go hence without day. This Court reserves jurisdiction to address attorney fees and costs.
* * *
