13 Fla. L. Weekly Supp. 1022a

Insurance — Personal injury protection — Insurer’s motion to strike provider’s motion for attorney’s fees and costs based on plaintiff’s asserted willful and intentional failure to cooperate with discovery related to claims for fees and costs is denied

FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Ronald Phillips, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 05-SC-1539. August 9, 2006. John R. Sloop, Judge. Counsel: Roy J. Smith, IV, Weiss Legal Group, Maitland; and Richard Oliver Hale, IV, Rutledge, Bradford, Orlando, for Plaintiff. Dale Gobel, De Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Defendant.

[Editor’s note: See also 13 Fla. L. Weekly Supp. 1109a.]

ORDER DENYING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

This matter having come to be heard by the Court on August 2, 2006 on Defendant’s Motion to Strike Plaintiff’s Motion for Attorneys’ Fees and Costs and after reviewing the pleadings, the Court file, and after hearing oral argument from counsel, this Court hereby finds as follows:

FACTS:

1. This is a claim for Personal Injury Protection benefits arising out of a motor vehicle accident that occurred on or about October 1, 2004.

2. The Plaintiff in this matter, FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Ronald Phillips, filed a breach of contract claim against the Defendant seeking PIP benefits due and owing the Plaintiff/Provider.

3. It is undisputed that at the time of the above-referenced accident, an automobile policy hadbeen issued to Ronald Phillips, and provided PIP coverage.

4. On January 27, 2006, Counsel for Defendant sent correspondence to Plaintiff’s counsel forwarding a check for the amount at issue and conceded to entitlement to attorney’s fees and costs.

5. On January 30, 2006, Roy J. Smith, IV, Esq., Counsel for Plaintiff, filed his Motion to Tax Attorney’s Fees, Legal Assistant Fees, Costs and Interest.

6. On January 31, 2006, Counsel for Defendant requested the deposition of Plaintiff’s counsel, any other person in Plaintiff’s counsels’ offices who billed time on this file in which Plaintiff’s counsel are seeking in Plaintiff’s Motion for Attorneys’ Fees, and the deposition of the corporate representative of Plaintiff. Additionally, Counsel for Defendant requested the time sheets of Plaintiff’s counsel.

7. On February 6, 2006, Richard O. Hale, IV, Esq., Co-Counsel for Plaintiff, filed his Motion for Attorney’s Fees and Costs.

8. On February 6, 2006, Counsel for Defendant filed Defendant’s First Request for Production Relating to Plaintiff’s Claim for Attorney’s Fees and Costs.

9. On February 7, 2006, seven (7) days after the first request, Counsel for Defendant again requested the deposition of Plaintiff’s counsels, any other person in Plaintiff’s counsels’ offices who billed time on this file in which Plaintiff’s counsels are seeking in Plaintiff’s Motion for Attorneys’ Fees, and the deposition of the corporate representative of Plaintiff.

10. On February 9, 2006, nine (9) days after the initial request for the deposition of Plaintiff’s counsel, any other person in Plaintiff’s counsels’ offices who billed time on this file in which Plaintiff’s counsel are seeking in Plaintiff’s Motion for Attorneys’ Fees, and the deposition of the corporate representative of Plaintiff, Plaintiff’s counsel responded to Counsel for Defendant in written correspondence which was sent via facsimile by stating:

In response to your demand for available dates to schedule my deposition, please be advised I am available for deposition, provided your client tenders pre-payment for one hour, at my hourly rate ($300.00) per hour, for attending said deposition.

Once your client agrees to pre-payment, we will be happy to provide available dates.

Further, in response to your request for the deposition of the corporate representative in this matter, please be advised that we are not seeking a contingency risk multiplier in this case, and therefore feel the deposition requests lacks relevance to the pending issues.

Finally, please provide available dates for fee mediation no later than close of business Wednesday, February 15, 2006, so we may move towards a resolution to this claim.

11. On February 13, 2006, Counsel for Defendant responded to Plaintiff’s February 9, 2006 correspondence again requesting the same depositions with the added response of “Florida law does not provide that my client pay you a deposition fee. We disagree with your assessment that the deposition of Plaintiff’s corporate representative lacks relevance.”

12. On March 3, 2006, Counsel for Defendant again requested the deposition of Plaintiff’s counsels, any other person in Plaintiff’s counsels’ offices who billed time on this file in which Plaintiff’s counsel are seeking in Plaintiff’s Motion for Attorneys’ Fees, and the deposition of the corporate representative of Plaintiff.

13. On March 6, 2006, Plaintiff filed its Response to Defendant’s First Request for Production Relating to Plaintiff’s Claim for Attorney’s Fees and Costs, which included time sheets from Roy J. Smith, IV.

14. On March 9, 2006, Plaintiff filed its Supplemental Response to Defendant’s Request for Production, which included time sheets from Richard O. Hale, IV.

15. On May 23, 2006, Counsel for Defendant forwarded correspondence via facsimile to Plaintiff’s counsel which misstated the facts. In said correspondence, Counsel for Defendant stated “[a]s you are aware, we have requested available depositions on several occasions and you have refused to provide any dates. Unfortunately we have no choice but to unilaterally schedule the depositions. Attached you will find the Notices.”

16. Plaintiff’s counsel, as stated in paragraph 9 above, did not refuse to provide dates for the depositions requested by Counsel for Defendant. Plaintiff’s counsel stated in its February 9, 2006 correspondence that “[o]nce your client agrees to pre-payment, we will be happy to provide available dates.”

17. When Plaintiff’s counsel requested $300.00 per hour for attending the scheduled deposition, Plaintiff’s counsel relied upon Orders granted by the Honorable John R. Sloop in Rural Metro Ambulance, a/a/o Jaquecin Wilkieme v. Direct General Insurance Company (case no.: 04-SC-000403) and Rural Metro Ambulance, a/a/o Elignaud Georges v. Direct General Insurance Company (case no.: 03-SC-005988). Said Orders state:

That Plaintiff’s Motion for Protective Order is GRANTED. Counsel for Plaintiff, Rutledge M. Bradford and Richard O. Hale shall make themselves available for deposition by Defendant conditioned on prepayment for their deposition testimony at the rate of $350 per hour for Ms. Bradford and $300 per hour for Mr. Hale.

18. On May 31, 2006, Plaintiff filed its Motion for Protective Order Regarding Deposition of Counsel and Plaintiff and on June 1, 2006 Plaintiff noticed same for hearing.

19. On June 13, 2006, Counsel for Defendant again misstated the facts in correspondence to Judge Sloop when it stated “opposing counsel has failed to provide the courtesy of any response. . . .It was only after the fifth request for available dates without any response did we notice the depositions.” Counsel for Defendant attached to this correspondence five letters, inclusive of their responsive letter dated February 13, 2006 and the May 23, 2006 letter which contains the misstatement that Plaintiff’s counsel refused to provide dates for depositions.

20. On June 20, 2006, Counsel for Defendant filed and noticed for hearing Defendant’s Motion to Strike Plaintiff’s Motion for Attorney’s Fees and Costs, wherein Defendant submitted to the Court again the misstatement that “Plaintiff on its own accord and through its counsel has willfully and intentionally refused to cooperate in any manner whatsoever with Defendant’s numerous requests for basic discovery regarding the Plaintiff’s claim for fees and such actions by counsel and the Plaintiff should not be tolerated by this court.”

21. With Defendant’s June 20, 2006 Motion, Defendant again attached the February 13, 2006 correspondence which includes a response to Plaintiff’s February 9, 2006 correspondence regarding the requested depositions. Additionally, Defendant again attached the May 23, 2006 letter which includes the misstatement that Plaintiff has refused to provide deposition dates.

22. In paragraphs 15 and 16 of Defendant’s June 20, 2006 Motion, Defendant argued to the Court that the current hearing before the Court mirrors the Order entered in the Rural/Metro Corporation as assignee of Xiomara Lebron v. State Farm Fire & Casualty Company, wherein the Court Granted Plaintiff’s Motion to Strike Defendant’s Motion to Award Fees and Costs.

23. The current Motion before the Court is irrefutably distinguished from the Order entered in the Lebron case.

24. In the Lebron case, the Order states in its paragraphs 4, 5 and 6 that “Mr. Gobel [Defense counsel in the Lebron case and Defense counsel in the current case] failed to respond [for the request for depositions].” Further, “[o]n November 21, 2005, Counsel for the Defendant [Mr. Gobel] and the Defendant’s adjuster, Joffer Faria, failed to appear for their scheduled deposition.”

25. In the current Motion before the Court, Plaintiff’s counsel responded within nine (9) days of the first request for deposition dates and Plaintiff’s counsel has not failed to appear for a scheduled deposition.

IT IS HEREBY ORDERED AND ADJUDGED:

Defendant’s Motion to Strike Plaintiff’s Motion for Attorneys’ Fees and Costs is hereby DENIED.

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