12 Fla. L. Weekly Supp. 868a
Insurance — Personal injury protection — Discovery orders — Failure to comply — Sanctions — Where insurer comes to court with unclean hands due to failure to comply with discovery orders, court refuses to entertain insurer’s motion for summary judgment and strikes its proposal for settlement — Exhaustion of policy limits — Escrow of disputed benefits — Court does not rule on insured’s motion to escrow disputed benefits but notes that risk inherent in insurer’s decision to continue to pay bills despite request to escrow funds rests entirely on insurer and puts insurer at risk of paying above policy limits
FARYAL MOHAMMED, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 04-CC-11638. May 16, 2005. Jerry L. Brewer, Judge. Counsel: Jeffrey M. Byrd, Orlando. Eric Biernacki, Orlando.ORDER ON VARIOUS MOTIONS HEARD ON APRIL 26, 2005
This cause came to be heard before the Court on Defendant’s Motion for Summary Judgment, Plaintiff’s Motion to Escrow Funds, Plaintiff’s Motion to Extend the Time to Respond to Defendant’s Proposal for Settlement and Plaintiff’s Motion to Compel Discovery on Tuesday, April 26, 2005 at 8:45 a.m., and the Court having considered the pleadings and arguments presented, it is hereby
ORDERED AND ADJUDGED that
1. The Court refuses to entertain the Defendant’s Motion for Summary Judgment at this time due to Defendant’s discovery violations. The Court entered an Order on November 4, 2004, ordering the Defendant to respond to discovery previously served within 30 days of the October 28, 2004 hearing. The Defendant did not comply. The Court finds the Defendant is in violation of such Order, and comes to the Court with “unclean hands” in seeking a Summary Judgment in this case at this time. After the Defendant has properly complied with this Court’s Order and responded to discovery, the Defendant may later raise such issues with the Court.
2. On the Plaintiff’s Motion for Extension of Time to Respond to the Defendant’s Proposal for Settlement, the Court finds such proposal filed by the Defendant to be a nullity due to Defendant’s failure to respond to discovery, and the Court hereby strikes such Proposal for Settlement in its entirety.
3. On the Plaintiff’s Motion to Escrow Funds at issue, the Court has not ruled on such matter. However, the Court does take notice of the fact that Progressive has continued to pay subsequent benefits after the filing of suit, has not escrowed the funds as requested by Plaintiff, and now there is less money left in available PIP benefits than the amount at issue in this case. The Court issues no ruling at this time, but feels that there is a risk inherent in the Defendant’s decision to continue to pay bills despite Plaintiff’s request to escrow funds. Any such risk rests entirely with the Defendant and puts the Defendant at risk of paying above policy limits should it subsequently be determined that the Defendant breached the contract at the time the bills which are the subject of this litigation were submitted.
4. In light of the Court’s prior ruling, Plaintiff’s Motion to Compel Discovery is moot.
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