12 Fla. L. Weekly Supp. 1180b
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer’s noncompliance with discovery orders demonstrated willful and deliberate disregard of court’s authority, disregard of orders has severely prejudiced medical provider’s ability to adequately prosecute matter since insurer has used documents from underwriting file it refuses to produce to support its defense of material misrepresentation, and insurer’s actions have caused unnecessary delay, insurer’s pleadings are stricken and default is entered against insurer
HIALEAH OPEN MRI, INC., a/a/o Ruth Regis, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-16815 SP 23 (01). August 10, 2005. Myriam Lehr, Judge. Counsel: Craig H. Blinderman and Mary-Margaret Warren, Mrejen Blinderman, P.L., Ft. Lauderdale, for Plaintiff. Nancy Avalone, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PLEADINGS
THIS MATTER, having come before the Court on Wednesday, July 27, 2005 on Plaintiff’s Motion for Sanctions and Motion to Strike Pleadings or in the Alternative Strike Defense of Material Misrepresentation and the Court having reviewed the motion, heard argument of counsel and being otherwise advised in the premises, it is hereby:
ORDERED and ADJUDGED that Plaintiff’s motion is GRANTED. The Court makes the following findings of fact:
1. On September 24, 2004, the Plaintiff served its First set of Interrogatories and First Request for Production upon the Defendant, United Automobile Insurance Company (“Defendant”). Paragraph #39 of Plaintiff’s request for production specifically requested the “entire underwriting file. . . .”
2. On November 19, 2004, the Plaintiff filed a Motion to Compel Discovery and Ex-Parte Order Compelling Discovery.
3. On December 6, 2004, the Defendant filed an Answer and Amended Affirmative Defenses alleging the specific defense of material misrepresentation.
4. On January 12, 2005, the Plaintiff filed a Motion to Compel Underwriting File in order to investigate Defendant’s allegation of material misrepresentation.
5. On January 19, 2005, the Court executed an Ex-Parte Order Compelling Discovery giving Defendant ten (10) days, until January 29, 2005, to respond to Plaintiff’s First Set of Interrogatories and First Request for Production.
6. As of February 22, 2005, the Defendant has failed to respond to Plaintiff’s First Request for Production (including the underwriting file) and Plaintiff’s First Set of Interrogatories in direct violation of this Court’s order.
7. On February 22, 2005, the Plaintiff filed a Second Motion to Compel Discovery and Motion for Entitlement to Sanctions.
8. On March 18, 2005, the Court executed an order granting Plaintiff’s Motion to Compel Underwriting File. This order gave Defendant twenty days from 03/18/05 to produce the complete underwriting file. The order further provided that if the underwriting file was not produced, the “Plaintiff shall be awarded sanctions” if the order was not complied with in the time prescribed. The underwriting file was due to Plaintiff on or before April 7, 2005.
9. As of April 29, 2005, the Defendant had not produced the underwriting file and had not responded to Plaintiff’s requests for interrogatories or production.
10. As of April 29, 2005, Defendant’s responses to Plaintiff’s First Set of Interrogatories and First Request for Production (including the underwriting file) were 217 days past due from the original date, 100 days past the first motion compelling responses on January 19, 2005 and 22 days past the date provided on the order compelling production of the underwriting file.
11. On April 29, 2005, Plaintiff filed a Motion for Sanctions and Motion to Strike Pleadings or in the Alternative Strike Defense of Material Misrepresentation.
12. At the July 27, 2005 hearing on Plaintiff’s Motion for Sanctions and to Strike Defendant’s Pleadings, Defense counsel provided Plaintiff’s counsel with a discovery package including Defendant’s Response to Plaintiff’s First Request for Production, Notice of Filing Defendant’s Answers to Interrogatories and a Privilege Log. The Court finds that the Plaintiff was severely prejudiced by this untimely submission of discovery responses especially in light of the amount of time they were overdue and the fact that the Plaintiff served upon Defendant its Motion for Sanctions and Motion to Strike Pleadings on April 29, 2005, 89 days before the hearing in this matter.
13. As of July 27, 2005, Defendant’s responses to Plaintiff’s First Request for Production and First Set of Interrogatories were 275 days past due and 189 days had elapsed since the entry of the first Court order compelling discovery responses.
14. The Court notes that attorney Nancy Avalone, Esquire, was not the attorney responsible for the conduct outlined herein that necessitated the striking of Defendant’s pleadings as the conduct occurred prior to her appearance as the attorney of record.
15. The Defendant’s non-compliance with discovery orders issued by this Court demonstrate a willful and deliberate disregard for the Court’s authority.
16. The Defendant’s willful and deliberate disregard of orders issued by the Court have severely prejudiced Plaintiff’s ability to prosecute the instant matter. Plaintiff has not been provided with a single document or witness name in the instant case.
17. Because the Defendant ignored discovery orders issued by this Court and failed to provide crucial documents to Plaintiff, the Plaintiff did not have a copy of the underwriting file prior to taking the deposition of the underwriting supervisor. Plaintiff’s inability to adequately prepare for this crucial deposition caused Plaintiff severe prejudice that cannot be remedied.
18. Especially egregious is the fact that while ignoring orders of this Court to respond to Plaintiff’s discovery requests, including the underwriting file, the Defendant chose to include a few select documents from the underwriting file (attached to the affidavit of its litigation adjuster, Jon Sorenson) to oppose Plaintiff’s motion for summary judgment and support its own claim of material misrepresentation. The Defendant has been able to defend the instant case with documents from the very file that Defendant refuses to provide to Plaintiff in direct violation of this Court’s orders. The Defendant’s actions have severely prejudiced the Plaintiff.
19. The Defendant has intentionally obstructed Plaintiff’s access to crucial and relevant discovery and as a result, Plaintiff has been severely prejudiced.
20. The Defendant’s actions have caused the unnecessary delay of this case.
21. Pursuant to the standard set forth in Ham v. Dunmire, 891 So.2d 492 (Fla. 2004), the Court finds that (a) Defendant’s numerous willful violations of discovery orders is worthy of the entry of a default; (b) the conduct of Defendant’s in-house counsel cannot be explained through mere inexperience or neglect; (c) Defendant’s willful failure to abide by discovery orders and ongoing refusal to produce the underwriting file severely prejudiced Plaintiff’s ability to prosecute the instant matter and prevented the Plaintiff from preparing for the crucial deposition of Defendant’s underwriting supervisor; (d) the Defendant can offer no reasonable justification for its noncompliance with discovery orders; and (e) the Defendant’s conduct caused unnecessary delay that created a significant problem of judicial administration.
22. Given the totality of the circumstances as outlined above, along with the applicable Florida Rules of Civil Procedure and the case law cited herein, this Court adopts all of its findings made on the record at Plaintiff’s Motion for Sanctions and Motion to Strike Defendant’s Pleadings conducted on July 27, 2005, strikes Defendant’s pleadings and enters a default against the Defendant.
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