12 Fla. L. Weekly Supp. 177a
Insurance — Failure of insurer to produce adjuster for deposition, either in compliance with court’s order or otherwise — Sanctions
MID FLORIDA IMAGING CENTERS, L.C., as assignee of ANDRES RIOS, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-2435-19-R. April 15, 2004. Ralph E. Eriksson, Judge. Counsel: Peter P. Hagood, Payas, Payas & Payas, Orlando, for Plaintiff. Jennifer K. Costello, Cameron, Hodges, Coleman, Lapointe & Wright, P.A., Orlando, for Defendant.
ORDER ON MOTION FOR CONTEMPT AND SANCTIONS
THIS CAUSE came on to be heard before this Court on March 1, 2004 upon the Plaintiff’s Motion for Contempt and Sanctions. A brief history of the case will aid in understanding this matter. On August 12, 2003 at the second pre-trial conference in this small claims case the parties announced to the Court that this was a UCR reduction case and that they would need to take two depositions, one of which was the Defendant insurance company’s adjuster. The Court continued the pre-trial conference for five weeks and told the parties to take the depositions and come back for another pre-trial conference on September 16. On September 16 the parties announced that the adjuster’s deposition had not been taken, and the Plaintiff filed a motion to have the Court set a specific date and time to depose the adjuster. During pre-trial conferences in this case on October 21 and November 24 it was determined that the adjuster’s deposition had still not been taken. The Court scheduled the adjuster’s deposition for December 5 at the adjuster’s office in Tampa and the Plaintiff’s counsel followed that up with written notice. On December 5 the Defendant’s insurance adjuster did not appear for his deposition. At the next pre-trial conference in this case, the Court again scheduled the adjuster’s deposition; this time it was to be taken on February 13. Thereafter, the Defendant’s attorney notified the Plaintiff that the adjuster would not appear on February 13.
As of this date, the Defendant has not produced their adjuster for a deposition, either in compliance with the Court’s order or otherwise.
The Court finds that the Defendant has specifically failed to comply with this Court’s prior orders to produce their adjuster for a deposition on December 5 and February 13. Therefore the Court finds that a sanction is warranted. It is
ORDERED AND ADJUDGED that
The Court hereby imposes as a sanction against the Defendant a sum of money which will be computed as follows: A reasonable attorney’s fee for the time spent by the Plaintiff’s attorney attending each scheduled deposition and in bringing each Motion for Sanctions. Because of the degree of difficulty that the Defendant’s actions have caused in this case, this sum shall have the maximum multiplier of 3 applied to it. This sum shall then be doubled as a sanction so as to impress upon the Defendant the seriousness that this Court places upon the Defendant’s conduct.
The Court, as a further sanction, will require the Defendant’s adjuster to appear at a deposition during the week of April 26, 2004 and comply fully with discovery. Such deposition to be scheduled at a time mutually agreeable to the parties. If the deposition has not been accomplished by April 29, 2004, the Court hereby schedules that deposition for 9:00 a.m. on April 30, 2004 at the office building of the adjuster.
This Court further notices the Defendant that further conduct on its part, as demonstrated, shall cause this Court to have to strike their pleadings and enter a default.
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FINAL JUDGMENT AWARDING ATTORNEY’S FEES
THIS CAUSE having come to be heard on the Plaintiff’s Motion to Tax Attorney’s Fees pursuant to the Court’s Order on Plaintiff’s Motion for Contempt and Sanctions and the Court having received testimony from both parties, and having examined the Court’s file, the Court makes the following findings of fact:
1. Plaintiff’s counsel, Peter P. Hagood, reasonable hourly rate is $275.00.
2. The reasonable number of hours Plaintiff’s counsel is entitled to for the time spent attending each scheduled deposition and in bringing each Motion for Sanctions is 15 hours.
WHEREFORE, it is ORDERED AND ADJUDGED:
3. Pursuant to this Court’s Order of April 15, 2004, on Plaintiff’s Motion for Contempt and Sanctions the reasonable amount of attorney fees is calculated as follows:
Amount of hours 15 multiplied by 3.0= 45 and then multiplied by 2.0 = 90
4. Plaintiff’s Counsel, Peter P. Hagood, 1018 East Robinson Street, Orlando, Florida, does have and recovers from the Defendant reasonable attorney fees in the amount of $24,750.00.
5. The Defendant shall have fifteen (15) days from the date of this order within which to pay the above stated sums without incurring any additional interest or other penalties.
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