12 Fla. L. Weekly Supp. 1032a
Insurance — Personal injury protection — Discovery — Depositions — Failure to attend — Sanctions — Where counsel for insurer learned three days prior to deposition that PIP adjuster to be deposed was no longer employed by insurer and called medical provider’s counsel to offer to provide adjuster’s last known address and to make litigation adjuster available for deposition, facts do not evince willful and egregious behavior commensurate with last resort remedy of striking pleadings — Admissions — Granting of relief from admissions for failure to timely respond, even absent motion for such relief, was not abuse of discretion where provider’s position is contrary to requested admissions, and sufficient demonstration of prejudice has not been shown
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ALAN H. MANDELL, P.A., a/a/o O’Neil A. Graham, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-8468 CACE 09. July 26, 2005. Counsel: Michael J. Neimand, Coral Gables. Dean A. Mitchell. Charles H. Bechert, III, Pompano Beach.
OPINION
(J. LEONARD FLEET, J.) THIS CAUSE comes before the Court upon Appellant’s, United Automobile Insurance Company (“United Automobile”), Appeal of both the trial court’s Order striking its pleadings and the denial of its request to deem matters admitted. Having reviewed the appellate record, heard argument of counsel, considered applicable law, and being otherwise advised in the premises, this Court finds and decides as follows:
On May 8, 2003, Appellee, Alan H. Mandell as the Assignee, filed an amended complaint against United Automobile for Breach of Contract related to PIP benefits. On June 10, 2003, United Automobile filed its answer and affirmative defenses. Thereafter, United Automobile was served with a notice for a September 4, 2003 deposition of its PIP adjuster or the corporate representative with the most knowledge regarding the subject claim. On August 29, 2003, the trial court ordered United Automobile to produce the PIP adjuster for deposition pursuant to the notice.
However, on September 4, 2003, the PIP adjuster failed to appear. Appellee filed an Emergency Motion to Compel as well as a Motion for Sanctions or Default. The trial court then ordered United Automobile to show cause why it should not be held in contempt for failure to comply with the court’s Order. At an October 13, 2003 hearing on the matter, counsel for United Automobile advised the trial court he learned on September 1, 2003 that the PIP adjuster was no longer employed by United Automobile. Counsel for United Automobile also indicated he personally called counsel for Appellee, offered to provide the PIP adjuster’s last known address and offered to make the litigation adjuster available in lieu of the PIP adjuster. The trial court determined counsel for United Automobile was aware the PIP adjuster was no longer employed by United Automobile at least three days prior to the scheduled deposition, and thus, the failure to file a motion seeking protection or additional time to produce the witness constituted contempt. The trial court ultimately found United Automobile willfully failed to comply with the court’s Order and struck its pleadings.
United Automobile filed its First Request for Admissions on or about June 20, 2003. The Request asked Appellee to admit the medical services rendered were not reasonable, related or necessary. The Response to the Request for Admissions was not filed until March 12, 2004. A non-jury trial was set to commence on April 26, 2004. Prior to trial, United Automobile moved to have the matters deemed admitted since the Response to Admissions was untimely filed and no Motion for Relief from Admissions was requested by Appellee, pursuant to Florida Rule of Civil Procedure 1.370. The trial court denied Appellant’s request to have the matters deemed admitted and ultimately entered an Order of Final Judgment on Appellee’s behalf. The parties and the trial court stipulated United Automobile had preserved its right to appeal the issues involving the striking of its pleadings and the denial of its motion to deem matters admitted. This appeal follows.
The granting of sanctions for discovery rule violations is reviewed using an abuse of discretion standard. Mercer v. Raine, 443 So.2d 944 (Fla. 1983); Distefano v. State Farm Mut. Ins. Co., 846 So.2d 572, (Fla. 1st DCA 2003). Similarly, the granting of relief from admissions is reviewed using an abuse of discretion standard. Pelkey v. Commander Motel Corp., 510 So.2d 965 (Fla. 4th DCA 1987).
United Automobile argues the trial court erred in striking its pleadings for alleged discovery violations and by granting Appellee relief from technical admissions where no motion requesting such relief was filed. This Court agrees in part and disagrees in part with these arguments.
Regarding the striking of pleadings and the entering of a default, Florida law has established these most severe sanctions should be employed in only extreme circumstances of egregious and contumacious conduct. Roggemann v. Boston Safe Deposit and Trust Co., 670 So.2d 1073 (Fla. 4th DCA 1996). The reasonableness of any sanction imposed must be commensurate with the severity of the misconduct, and the striking of pleadings should only be employed where a less severe sanction would fail to achieve a just result. Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993); Precision Tune Auto Care, Inc. v. Radcliffe, 804 So.2d 1287 (Fla. 4th DCA 2002); Williams v. Udell, 690 So.2d 732 (Fla. 4th DCA 1997).
In Precision Tune Auto Care, Inc., the appellate court found the striking of pleadings was warranted where a party’s corporate representative failed to appear for the first scheduled deposition, a corporate representative with only very limited knowledge appeared for the second scheduled deposition, and a named corporate representative, who was ordered to appear for the third scheduled deposition, failed to do so even though the trial court made it clear such failure to appear would result in the party’s pleadings being struck. Id. at 1289, 1290. Precision Tune Auto Care, Inc., illustrates the type of deliberate, contumacious and willful disregard for a court order which justifies the striking of pleadings. To the contrary, the factual findings made by the trial court in the instant case do not evince willful and egregious behavior commensurate with the last resort remedy of striking pleadings. Here, given the facts and circumstances, the trial court abused its discretion in striking United Automobile’s pleadings.
However, the trial court’s denial of United Automobile’s request to deem matters admitted was soundly within its discretion. The absence of a motion for relief from admissions for the failure to timely respond does not automatically preclude the trial court from granting such relief. Pelkey v. Commander Motel Corporation, 510 So.2d at 965. The granting of relief from admissions, even absent a motion for such relief, is not an abuse of discretion where the record evidence makes clear the opposing party’s position is contrary to the requested admissions, where disputed facts exist, and where no prejudice is shown. Fla. R. Civ. P. 1.370(b); Miles v. Robinson, 803 So.2d 864 (Fla. 4th DCA 2002); Mahmoud v. King, 824 So.2d 248 (Fla. 4th DCA 2002); Singer v. Nationwide Mut. Ins. Co., 512 So.2d 1125 (Fla. 4th DCA 1987).
In the instant case, while the record indicates Appellee failed to timely answer the Request for Admissions or to file a Motion for Relief, United Automobile never moved to compel admissions or filed a summary judgment motion. The record evidence also indicates Appellee’s position is contrary to the requested admissions. Moreover, a sufficient demonstration of prejudice has not been shown. Although United Automobile’s pleadings were struck, it did not lose its ability to contest damages at trial. Harless v. Kuhn, 403 So.2d 423 (Fla. 1981); Pierce v. Anglin, 721 So.2d 781 (Fla. 1st DCA 1998). United Automobile’s ability to contest damages was separate and apart from the issue of liability, which the trial court disposed of on October 31, 2003. In light of these facts and circumstances, the trial court’s granting of relief from admissions did not constitute an abuse of discretion. Accordingly, it is hereby
ORDERED AND ADJUDGED United Auto’s Appeal is GRANTED in part and DENIED in part. United Automobile’s Appeal of the trial court’s Order striking its pleadings is GRANTED. The Order striking United Automobile’s pleadings is REVERSED and REMANDED to the trial court for proceedings consistent herewith.
FURTHER ORDERED AND ADJUDGED United Automobile’s Appeal of the trial court’s denial of the request to deem matters admitted is DENIED.
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