12 Fla. L. Weekly Supp. 1099b
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Civil contempt — Default — Where repeated failure to comply with discovery was not result of neglect or inexperience of insurer’s attorney, attorney has been previously sanctioned three times in case, insurer itself is personally involved in disobedience of attorney working directly and solely for insurer, medical provider has incurred far more fees than necessary to obtain information it had clear right to obtain, attorney offered no explanation for noncompliance, and delay created significant problems for judicial administration by requiring that judge spend inordinate amount of time on motions to compel and motions for sanctions, insurer is found in civil contempt and default is entered
HOLLYWOOD INJURY REHAB CENTER, a Florida Corporation (assignee of Yvonne Warren), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-07344 COSO (62). July 15, 2005. Gisele Pollack, Judge.
Default judgment affirmed. 14 Fla. L. Weekly Supp. 541a
[Editor’s note: Motion to set aside default judgment denied at 13 Fla. L. Weekly Supp. 384a.]
ORDER OF CONTEMPT AND ORDERENTERING DEFAULT FOR PLAINTIFF
THIS CAUSE came before the Court on July 6, 2005 for hearing on Plaintiff’s Fourth Motion to Enforce Court Order. This Court having reviewed the entire Court file, heard argument, reviewed all the relevant legal authorities, and having been sufficiently advised in the premises, the Court hereby finds as follows:
Background:
1. On October 20, 2003, the Plaintiff filed its complaint seeking unpaid PIP benefits, its Request for Production, and standard Interrogatories to Defendant.
2. On or about November 10, 2003, the Defendant was served with the Summons, Complaint, Request to Produce, and the Interrogatories.
3. On December 12, 2003, the Defendant filed its Answer and Affirmative Defenses, but did not respond to the Request for Production or the Interrogatories.
4. On July 1, 2004, the Plaintiff filed a Second duplicate Request to Produce and Second duplicate standard Interrogatories, both certifying that mailed to the Defendant on June 29, 2004.
5. The Defendant again did not respond to either of the discovery requests.
6. The Plaintiff filed its Ex Parte Motion to Compel on August 16, 2004 and Judge Lee entered an Order on August 17, 2004 compelling Defendant to file its response within 10 days.
7. The Defendant did not comply with this Court order, and on November 15, 2004, Plaintiff filed its Motion to Enforce Court Order, requesting compliance within 48 hours, sanctions, and in the alternative, requesting the Court to enter a default against Defendant and/or strike Defendant’s affirmative defenses and/or preclude the Defendant from presenting a company representative as a witness at trial, or grant any other relief the Court deems just and appropriate.
8. A hearing on this motion was set for December 9, 2004, and Defendant filed an Emergency Motion for Continuance on December 8, 2004 alleging unavailability due to a trial blitz week scheduled in Miami-Dade County.
9. Plaintiff filed a second Ex Parte Motion to Compel Initial Discovery served on November 10, 2003, on November 30, 2004 and Judge Lee issued a Second Order compelling discovery response within 10 days on December 2, 2004.
10. Defendant’s Emergency Motion for Continuance was Granted and Judge Lee reset the matter to December 30, 2004.
11. Upon hearing of Plaintiff’s Motion to Enforce Court Order December 30, 2004, Judge Lee granted Plaintiff’s Motion and ordered Defendant, waiving objections, to respond to Plaintiff’s Supplemental Discovery (Production and Interrogatories) dated June 30, 2004 by noon January 7, 2005, sanctioning Defendant $250.00.
12. Defendant filed a Response to Plaintiff’s Second Request for Production of Documents on January 7, 2005, stating “None at this time”.
13. On January 13, 2005, Plaintiff filed a Motion to Enforce Court Order Enforcing Court Order indicating Defendant’s response to Plaintiff’s Second Request to Produce, and the failure of Defendant to respond to Plaintiff’s Supplemental Interrogatories.
14. Upon hearing February 10, 2005, this Court granted Plaintiff’s Motion to Enforce Court Order Enforcing Court Order, ordering Defendant to respond to supplemental interrogatories as required in the Court Order December 30, 2004 and awarding Plaintiff sanctions in the amount of $250.00.
15. On March 9, 2005, Plaintiff filed a Motion to Enforce Court Order Enforcing Court Order Enforcing Yet Another Court Order, the Defendant still not responding to Supplemental Interrogatories.
16. Upon hearing April 21, 2005, this Court granted said Motion, ordering the Defendant to respond to the discovery ordered within 10 days, sanctions in the amount of $275.00, and further that the Defendant shall state that no documents are available if that indeed be the situation in this case.
17. Plaintiff filed a Fourth Motion to Enforce Court Order on June 13, 2005.
18. Rather than comply, the Defendant required the Plaintiff to set and appear at a hearing for the fourth time, subsequent to filing two ex parte motions to compel, and receiving five prior Court Orders, still not responding appropriately to Plaintiff’s Request to Produce, nor responding whatsoever to Plaintiff’s Interrogatories since being initially served on November 10, 2003.
19. At no point has the Defendant ever requested any additional time to respond, nor filed any objection to Plaintiff’s discovery requests, and at the hearing July 6, 2005, the Defendant finally responded that it had no documents in its possession. The Defendant offered no explanation whatsoever for its failure to respond, nor for its complete disregard of four Court Orders.
Conclusions of Law: The appropriate analysis for determining whether to enter a default judgment as a sanction is set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994). This case dealt with a dismissal with prejudice as a sanction, and the effect of a default judgment is the same: either action disposes of the case. The Florida Supreme Court in Kozel sets forth principals and guidelines for determining whether such a sanction is appropriate. One principle is 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 the unilateral action of its attorney. Additionally, the analyzing court should consider whether “a sanction less severe than dismissal appears to be a viable alternative.” Id., 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.
It is against this background that this Court will consider the record in this cause 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. This Court finds that the misconduct at issue is not the result of neglect or experience on the part of attorneys. The pattern of indifference to five Court Orders, including sanctions in this case clearly defies the possibility of the attorney’s conduct being neglectful. Additionally, the attorneys handling this case were experienced lawyers.
Whether the attorney has been previously sanctioned. A default judgment is a severe sanction. Therefore, this 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 by this Court on many occasions and three times in this case alone. This judge is also aware that this Defendant has been sanctioned for this same and similar conduct by numerous judges in this Circuit dozens of times, and has paid thousands of dollars in sanctions for such misconduct. It is clear to this Court that the 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 v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Additionally, the attorneys work directly for the client’s Office of the General Counsel. They have no clients other than United Automobile Insurance Company.
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. Plaintiff has incurred far more fees than necessary in simply trying to obtain information that it clearly has a right to obtain. It has been nearly two years that the Plaintiff has tried to obtain this information. The Plaintiff has drafted, set, and argued far too numerous motions for information that should have been readily supplied in 2003.
Whether the attorney offered reasonable justification for noncompliance. The Defendant offered no explanation whatsoever and the Court finds that none exists.
Whether the delay created significant problems of judicial administration. The undersigned judge spends an inordinate amount of time with this party insurer, due to motions to compel and motions for sanctions, as compared to other similar cases involving the same type of dispute against other insurers. This case and many others involving this same Defendant are nearly two years old, clearly beyond the guidelines set forth in the Rules of Judicial Administration. This Court has spent an inordinate amount of time in hearing on a duplicitous motion in this particular case.
In conclusion, this Court sees no viable alternative sanction in this particular case. As of the date of this Order, Defendant has still not appropriately complied with Plaintiff’s discovery requests. Perhaps the Defendant will begin to take the steps necessary to insure that the Florida Rules of Civil Procedure and orders of the court are met with prompt and complete compliance.
ORDERED AND ADJUDGED that Defendant is in Civil Contempt of this Court for failing to obey Court Orders, and that Default is entered against the Defendant. Damages in this case are liquidated, and 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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