13 Fla. L. Weekly Supp. 384a
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Default — Where insurer which claims that no policy of insurance was in existence at time of accident waited until hearing on provider’s fourth motion to enforce court’s order to produce documents and answer interrogatories to respond that it had no documents in its possession, insurer produced no sworn evidence that provider knew that insurer had not assumed risk of insuring claimant, and court used graduated sanctions throughout hearings regarding compliance with discovery over two-year period before finally entering default for provider, motion to set aside default is denied — Moreover, motion to set aside default filed more than two months after order of contempt and default was untimely filed and is unsworn
[Note: Defaul final judgment affirmed at 14 Fla. L. Weekly Supp. 541a.]
HOLLYWOOD INJURY REHAB. CTR. a/a/o Yvonne Warren, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-07344 COSO (62). January 23, 2006. Gisele Pollack, Judge.
ORDER DENYING DEFENDANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT
THIS CAUSE came before the Court on January 18, 2006, for hearing of the Defendant’s unverified Motion To Set Aside Default Judgment, and this Court’s having reviewed the Motion and entire Court file; heard argument; and reviewed the relevant legal authorities, it is
ORDERED and ADJUDGED that the Motion is hereby DENIED.
Preliminary Findings:
1. Upon hearing July 6, 2005 on Plaintiff’s Fourth Motion to Enforce Court Order to Produce documents and Answer Interrogatories, the Defendant having not complied with such responses since first served with same November 10, 2003, and further not complied subsequent to two (2) Ex Parte Orders to Compel and three (3) Orders to Compel after hearing, this Court issued an Order of Contempt and Order Entering Default for Plaintiff July 15, 2005 [12 Fla. L. Weekly Supp. 1099b].
2. Additionally, the Order to Enforce Court Order, the Second Court Order to Compel dated December 30, 2004, after hearing on same, stated that “Failure to comply with this order may result in default, striking of pleading and other sanctions.”
3. This Court has utilized graduated sanctions throughout the numerous hearings regarding compliance with discovery and court orders to compel over nearly a two (2) year period.
4. Defendant filed a Motion to Set Aside the Default Judgment of July 15, 2005, on September 19, 2005.
5. Defendant’s Motion asserted the agent that sold the policy to the claimant failed to bind the policy to United nor to notify United of its existence. That as a result, no underwriting file was ever created for this claimant and no contract between this Defendant and the claimant existed.
6. Defendant additionally asserts in its Motion that Plaintiff’s propounding of discovery requests upon the Defendant constituted a continued effort by the Plaintiff to trap the Defendant into noncompliance with impossible discovery demands that were disingenuous and calculated to lead to the imposition of sanctions and default.
7. This Court held a hearing on Defendant’s Motion January 18, 2006 (the October 24, 2005 hearing previously set was canceled as Court was closed during Hurricane Wilma).
Findings of Fact at Hearing:
1. Defendant admitted that it could have complied with Plaintiff’s discovery requests by a denial that documents pertaining to the insured were available, that these documents did not exist, and could not be produced, upon Plaintiff’s first service of Request to Produce and Interrogatories November 10, 2003. The discovery demands of Plaintiff were therefore not even remotely impossible to fulfill, and could have been satisfied immediately after the inception of this lawsuit in October of 2003.
2. This Court even admonished Defendant on April 21, 2005, at Plaintiff’s Third Motion to Enforce Court Order hearing, that Defendant shall state no documents are available if that indeed be the situation in this case.
3. The Defendant did assert there is no insurance coverage for this accident as no policy of insurance was ever in existence at the time of the accident, by way of Affirmative Defense filed December 12, 2003. However, an affirmative defense is not evidence.
4. The Defendant did not utilize other means under the Rules of Civil Procedure such as a Motion for Additional Time, Motion to Quash or a Motion for Protective Order, to protect itself from the sanctions imposed in this lawsuit. It was not until the hearing on Plaintiff’s Fourth Motion to Enforce Court Order July 6, 2005, that Defendant finally responded that it had no documents in its possession.
5. The Defendant failed to verify its Motion to Set Aside Order of Default, and did not produce any sworn evidence at this hearing to establish that Plaintiff knew Defendant had never accepted the risk of insuring this claimant.
6. In fact Defendant’s only filed response January 7, 2005, to discovery requests in this lawsuit after having completely ignored two (2) prior Ex Parte Orders to Compel, and after hearing on Plaintiff’s Motion to Enforce Court Order, stated as to documents, “None at this time”, which may have implied that the Defendant had not found the documents as of yet, for reasons not to be speculated upon.
7. It is this type of action that leads the Court to conclude that if any party persisted in a continuous effort to trap the other party, was disingenuous, and calculating, it was the Defendant, not Plaintiff.
8. The Defendant’s only explanation for its actions is that the discovery requests were impossible to fulfill, and this Court finds this explanation incredible.
Conclusions of Law:
The Defendant cites to Gomez-Bonilla v. Apollo Ship Chandlers, Inc., 650 So. 2d 116 (Fla. 3rd DCA 1995), to assert this Court has abused its discretion in imposing the sanction of dismissal upon a party who could not have complied with a discovery order. In Gomez-Bonilla, the Court dealt with a party that had made a conscious effort to comply with court orders to the extent he was capable, and there was therefore, no willful disregard for the court’s orders to support a sanction of dismissal. In this case the Defendant made no efforts whatsoever to comply with court orders, other than to state “none at this time” as discussed above. This Court adheres to the ruling and findings made in it’s Order of Contempt and Default July 15th, 2005, in accord with Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994), that:
(1) the Defendant’s attorney’s conduct was willful, deliberate, and contumacious, rather than an act of neglect or experience;
(2) the Defendant’s attorney had been previously sanctioned;
(3) the client was personally involved in the act of disobedience;
(4) the delay prejudiced the opposing party through undue expense;
(5) the attorney offered no reasonable justification for noncompliance; and
(6) the delay created significant problems of judicial administration.
Additionally, and consistent with the Defendant’s practice, the Motion to Set Aside Default was untimely filed, more than two (2) months after this Court’s Order of Contempt and Default. This is not due diligence. See Bayview Tower Condominium Association, Inc. v. Schweizer, 475 So. 2d 982, 983 (Fla. 3d DCA 1985) (30-day delay too late); 32A Fla. Jur. 2d Judgment & Decrees §287 (2003) (more than 20-day delay too late).
Moreover, the motion was not made under oath, and the Defendant did not produce any sworn evidentiary testimony at the hearing. Dodrill v. Infe, Inc., 837 So. 2d 1187 (Fla. 4th DCA 2003).
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