12 Fla. L. Weekly Supp. 1099a
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Default — Civil contempt — Where insurer’s attorney had ability to comply with discovery orders but willfully and with deliberate indifference failed to do so, insurer was complicit in disobedience, failure to comply has caused undue delay prejudicing medical provider, insurer had notice from prior order that timely compliance was condition precedent to defense of suit and more than fair opportunity to cure, and court has been presented no valid reason for noncompliance, insurer is held in civil contempt and default is entered
BROWARD CHIROPRACTIC ASSOCIATES, INC., a Florida Corporation (assignee of Joseph, Evens), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-05341 COCE 55. July 18, 2005. Eric Beller, Judge. Counsel: Russel Lazega, North Miami. Steven Cameron.
ORDER OF CONTEMPT AND ENTRY OF DEFAULT
THIS CAUSE came before the court at hearing on June 22, 2005, on Plaintiff’s Motion to Enforce Court Order and request for contempt sanctions, and the court having heard argument and being otherwise apprised finds as follows:
Findings of Fact
The Court makes the following findings of fact:
1. On February 13, 2004, Plaintiff mailed Plaintiff’s Interrogatories and Plaintiff’s Request for Production.
2. On February 24, 2004 this court entered an order (furnished by the Defendant) invoking the rules of civil procedure and ordering responses “to Plaintiff’s outstanding discovery requests . . .” within 20 days.
3. Defendant failed to respond and the court thereafter issued another order on January 26, 2005, commanding discovery responses within 10 days.
4. Defendant failed to timely comply and a motion to enforce court order was filed on February 11, 2005 and heard on March 7, 2005. At hearing Defendant was sanctioned $250.
5. Additionally, Plaintiff propounded Supplemental Interrogatories and Request for Production to Defendant on January 18, 2005.
6. Again, the Defendant failed to timely respond and the Plaintiff moved to compel supplemental discovery. On March 15, 2005, the court ordered Defendant to respond to Plaintiff’s Supplemental Interrogatories and produce the documents requested in Plaintiff’s Supplemental Request for Production within 10 days from the date of the order.
7. Defendant again failed to comply and a hearing was set for May 24, 2005 seeking enforcement of this order.
8. At hearing Defendant produced responses to the discovery. The response was dated May 23, 2005 — the day before the hearing on enforcement of the order.
9. The court reviewed the responses at hearing and found them to be non-responsive and granted Plaintiff’s Motion to Enforce the March 15, 2005 order.
10. The May 24, 2005 order specifically articulated what was required to be furnished in response to the discovery requests and gave notice that “timely compliance shall be a condition precedent to defense of this suit”. Sanctions of $500 were also awarded.
11. Defendant had ample opportunity to respond and comply with these orders, however, thereafter this court received yet another motion (dated June 7, 2005) advising that the May 24, 2005 order had not been complied with.
12. The matter was yet again brought before this court for hearing for June 22, 2005.
13. On the date of June 22, 2005 hearing the Defendant still had not fully complied with the prior orders — specifically, the Defendant had not furnished any better response to discovery and Defendant presented the untimely $500 sanctions check at the hearing. Accordingly, the court finds that: 1) the Defendant had the ability to comply with its orders but willfully or with deliberate indifference failed to do so; 2) that the Defendant/client was complicit in the act of disobedience; and 3) that the failure to comply has caused undue delay prejudicing Plaintiff. This Court’s May 24, 2005 Court Order specifically stated “timely compliance shall be a condition precedent to defense of this suit” and Defendant had notice and more than fair opportunity to cure. This Court has not been presented any valid reason for the non-compliance and based on the aforementioned finding of facts, it is therefore,
ORDERED AND ADJUDGED that
1. The Defendant is in Civil Contempt of this Court for failing to obey this Court’s Order.
2. A default is entered against the Defendant, and as damages are liquidated, Plaintiff is directed to submit a proposed default judgment entering judgment for the amount prayed for in the complaint and declaring that Plaintiff is the prevailing party entitled to attorney’s fees and costs pursuant to F.S. 627.428, for which this court shall reserve jurisdiction.
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