12 Fla. L. Weekly Supp. 780b
Insurance — Personal injury protection — Discovery — Depositions — Failure to attend — Sanctions — Default — Motion to amend default judgment upon appellate ruling, to include specific finding of willful noncompliance with order compelling attendance at deposition, is granted where transcript indicates judge made finding of willful noncompliance with order and that adjuster’s continuous failure to attend numerous depositions was willful and without excuse
PRESGAR MEDICAL IMAGING, INC., D/B/A CENTRAL MAGNETIC IMAGING, (a/a/o Wanda Rios), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 01-25582 SP 23 (2). May 11, 2005. Caryn Canner Schwartz, Judge. Counsel: Kenneth J. Dorchak, Law Offices of Kenneth J. Dorchak, North Miami, for Plaintiff. Darien Doe, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO AMEND ORDER OF DEFAULT BASED UPON APPELLATE RULING AND AMENDED DEFAULT FINAL JUDGMENT
THIS CAUSE having come before the Court on March 9, 2005 on the Plaintiff’s Motion Amend Default Judgment. Based upon Appellate Court ruling [11 Fla. L. Weekly Supp. 1044a], and after hearing argument of counsel and being fully advised of the premises, it is hereby:
ORDERED AND ADJUDGED that after having reviewed the transcript of the September 25, 2003 hearing on the Plaintiff’s Motion for Default, the file, the Plaintiff’s Motion and the appellate Court ruling as well as considering the argument of counsel, the Plaintiff’s Motion to Amend the Default Final Judgment is Granted. The Default Final Judgment is amended nunc pro tunc asset forth below and amended as follows to include a specific finding of willful non-compliance.
IT IS FURTHER ORDERED AND ADJUDGED:
(1) that Judge Steinhardt’s comments in the September 25, 2003 transcript of the hearing clearly indicate a finding by Judge Steinhardt of willful non-compliance with the Court’s Order dated May 8, 2003, as well as the finding that the adjuster’s continuous failure to appear at the numerous depositions set by the Plaintiff was willful and without excuse. Judge Steinhardt’s findings regarding wilfulness comments in the transcript are incorporated into this amended default judgment. The Court cites the language from the Appellate Court opinion that “is it apparent from the history of the case that the trial judge had sufficient basis to find that the failure to attend the deposition was willful . . .”
(2) That the final default money judgment dated November 25, 2003 is hereby reinstated and that final default judgment is hereby entered in favor of the Plaintiff, PRESGAR MEDICAL IMAGING, d/b/a Central Magnetic Imaging, of 1860 N.E. Miami Gardens Drive, North Miami Beach, FL 33179 and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $1,988.89, representing outstanding PIP benefits, plus the amount of $426.38 (1311 days) for statutory interest (9/24/2001 through April 27, 2005), for a total judgment against the Defendant in the amount of $2,415.27 which amount shall bear interest at the rate of 7% per annum and for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs. The undersigned Judge shall retain jurisdiction over this matter to determine the issues of attorney’s fees and costs and any other subsequent proceedings in this matter.
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