12 Fla. L. Weekly Supp. 1069a
Insurance — Personal injury protection — Discovery — Interrogatories — Failure to respond — Sanctions — Court declines to strike pleadings or enter default as sanction for insurer’s failure to respond to interrogatories regarding its relationship with physician who performed compulsory insurance medical examination and company that acts as insurer’s agent in assigning cases to physicians who perform examinations, but insurer is ordered to reply to interrogatories
KYANNE L. BOSTON, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2004 SC 004111, Division V. August 26, 2005. Patricia A. Kinsey, Judge. Counsel: Keith W. Weidner, McKenzie, Taylor, & Zarzaur, P.A., Pensacola, for Plaintiff. Edward H. Merrigan, Jr., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SANCTIONS
At a hearing in open court on August 24, 2005, the defendant appeared telephonically through counsel. Plaintiff appeared through counsel present in the courtroom. The court heard argument of counsel and reviewed their memoranda.
The plaintiff seeks to strike the defendant’s pleadings and/or render a default judgment and/or pay the reasonable expenses caused by defendant’s failure to respond to the Plaintiff’s Third Interrogatories. Having reviewed the materials presented, the court finds the plaintiff’s position has merit. However, since the case law is clear that cases should be decided on the issues, rather than on a “technicality,” the court is reluctant, at this time, to either strike the pleadings or enter a default judgment.
Plaintiff seeks information about the defendant’s relationship with the physician who performed the compulsory insurance medical examination (CIME) as well as the company who now acts as agent for the defendant in assigning cases to the physicians who perform the CIME’s. This information is clearly authorized.1 Therefore it is
ORDERED AND ADJUDGED that defendant shall reply with specificity to plaintiff’s Third Interrogatories #22 and #43 within thirty days of the date of this Order.
FURTHER ORDERED that the court retains jurisdiction over the award of attorneys fees and costs requested by plaintiff. Plaintiff should set a hearing at its earliest convenience to have the court determine the amount to be assessed.
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1See Allstate v. Boecher, 733 So.2d 993 (Fla. 1999), Allstate v. Hodges, 855 So.2d 636 (Fla. 2d DCA 2003), Southern Diagnostic Associates v. Bencosme, 833 So. 2d 801 (Fla. 3d DCA 2002), Allstate v. Pinder, 746 So.2d 1255 (Fla. 5th DCA 1999) and Orkin v. Knollwood Properties, LTD, 710 So.2d 697 (Fla. 5th DCA 1998).
2Please identify each case in which Dr. D.J. Jeserski, DC has testified as an expert in trial or deposition, conducted an investigation (records review), prepared a report, performed any evaluation, or rendered any opinion for Defendant from three years preceding the date Plaintiff’s benefits were terminated to date.
3Please identify each case in which Royal Medical Consultants has facilitated finding Defendant a medical expert that testified as an expert in trial or deposition, conducted an investigation (records review), prepared a report, performed any evaluation, or rendered any opinion for Defendant from three years preceding the date Plaintiff’s benefits were terminated to date.
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