13 Fla. L. Weekly Supp. 197b
Insurance — Motion to compel discovery and to dismiss without prejudice granted
JOEL D. STEIN, D.O., P.A. d/b/a NON-SURGICAL ORTHOPEDICS (a/a/o Cynthia Joseph), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-7047 COCE 53. December 1, 2005. Robert W. Lee, Judge. Counsel: Laura M. Watson, Fort Lauderdale, for Plaintiff. Kevin Jones, Coral Gables, for Defendant.
ORDER STRIKING PLEADINGS AND ENTERING DEFAULT
THIS CAUSE came before the Court on November 30, 2005 for hearing of the Plaintiff’s Motion for Sanctions, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:
1. On April 17, 2003, the Plaintiff filed its complaint seeking unpaid PIP benefits.
2. On or about April 17, 2003, the Plaintiff served its Interrogatories, Request for Production, and First Request for Admissions.
3. On May 16, 2003, the Defendant filed its Answer and Affirmative Defenses.
4. On May 21, 2003, the Defendant filed its Motion for Enlargement of Time to Respond to Plaintiff’s Request for Production and Interrogatories, but did file its Response to Plaintiff’s Request for Admissions.
5. On June 20, 2003, Plaintiff filed its Motion to Strike the Defendant’s Affirmative Defenses.
6. On or about June 27, 2003, Defendant filed its Request to Produce, Interrogatories and First Request for Admissions without yet responding to Plaintiff’s Request for Production and Interrogatories.
7. On June 30, 2003, the Plaintiff served its Ex Parte Motion to Compel Responses to Plaintiff’s Request for Production and Interrogatories, which the Court granted Plaintiff’s Motion on July 1, 2003 giving Defendant 10 days to respond.
8. On July 2, 2003, the Defendant served its Response to Plaintiff’s First Request for Production but did not file its Answers to Plaintiff’s Interrogatories.
9. On August 18, 2003, Plaintiff filed its Motion for Sanctions for Defendant’s failure to respond to Plaintiff’s Interrogatories.
10. On October 27, 2003, Plaintiff set its Motion to Strike Defendant’s Affirmative Defenses, Motion for Sanctions and Defendant’s Objections to Plaintiff’s Discovery for hearing on January 20, 2004.
11. On January 20, 2004, the Court entered its Order Striking the Defendant’s third affirmative defense.
12. On April 26, 2004, Plaintiff set Defendant’s Objections to Plaintiff’s Interrogatories #4, 5, 6, 12 & 13 for hearing on June 10, 2004. The Court entered an Agreed Order on June 15, 2004 giving Defendant 20 days to provide better answers to Interrogatories 4, 5 and 13.
13. The Defendant did not comply with the Court’s Order of June 15, 2004, and the Plaintiff served its Motion for Sanctions on July 9, 2004.This motion was set for hearing on September 15, 2004.
14. On August 30, 2004, Defendant filed its Better Answers to Plaintiff’s Interrogatories 4, 5, 6, 12 and 13, well after the deadline set by the Court’s Order of June 15, 2004.
15. On May 20, 2005, the Court entered an Order referring the case to mediation.
16. The Defendant failed to pay the required mediation fee, and did not appear at the scheduled mediation on June 29, 2005, and on July 5, 2005, the Court set a hearing on its Order to Show Cause for July 29, 2005.
17. On July 14, 2005, the Plaintiff filed its Motion for Sanctions due to Defendant’s failure to appear at mediation.
18. On July 29, 2005, the Court entered an Order sanctioning the Defendant $437.50 to be paid to Plaintiff and ordered the mediation be reset. Defendant was ordered to pay the entire cost of the mediation.
19. On July 29, 2005, the mediation was reset for August 31, 2005. The case did not settle at mediation and the Court entered its Order Setting Pretrial Deadlines with Referral to Arbitration.
20. Pursuant to the Court’s Pretrial Order of September 1, 2005, the Defendant had until October 1, 2005 to file its Expert Witness List. The Defendant failed to do so.
21. Pursuant to the Court’s Pretrial Order of September 1, 2005, the Defendant had until October 21, 2005 to file its Pretrial Stipulation. The parties were required to make a good faith effort to prepare a Joint Stipulation. The Defendant failed to do so.
22. On October 17, 2005, Plaintiff for the third time set the Deposition of the adjuster in charge of the PIP file at issue in this case. The Defendant failed to appear.
23. On November 10, 2005, Plaintiff filed its Motion for Sanctions for the Defendant’s failure to appear at the scheduled deposition and to comply with the Pretrial Order. This motion was set for hearing on November 30, 2005.
24. At the hearing, the Defendant was unable to offer any explanation for its failure to comply with the Pretrial Order, particularly since all pertinent deadlines occurred prior to Hurricane Wilma.
Conclusions of Law:The appropriate analysis for determining whether to enter a default judgment as a sanction is, in this Court’s view, set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994), as recently addressed by the appellate court in American Express Co. v. Hickey, 869 So.2d 694 (Fla. 5th DCA 2004). Although these cases deal with dismissals with prejudice as a sanction, the effect of a default judgment as a sanction is the same: either action disposes of the case. The Florida Supreme Court has set forth some principles for addressing the matter, and some guidelines for determining whether such a sanction is appropriate. These principles include whether the purpose of the Florida Rules of Civil Procedure is being upheld, i.e., “to encourage the orderly movement of litigation.” Another principle is that the client should not generally be punished for unilateral action of its attorney. Additionally, the analyzing court should consider whether “a sanction less severe than dismissal [or default] appears to be a viable alternative.” Kozel, 629 So.2d at 818. In deciding whether these principles are being upheld, the Supreme Court set forth six guidelines for a trial court to use:
(1) whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or experience;
(2) whether the attorney has been previously sanctioned;
(3) whether the client was personally involved in the act of disobedience;
(4) whether the delay prejudiced the opposing party through undue expense;
(5) whether the attorney offered reasonable justification for noncompliance; and
(6) whether the delay created significant problems of judicial administration.
Id. These guidelines were reiterated by the Fifth District Court of Appeal in American Express, 869 So.2d at 695.
In Kozel, as in American Express, the sanction of dismissal was used by the trial court “based solely on the attorney’s neglect.” The Supreme Court directed that the trial court reconsider this sanction in light of the above guidelines. Id.; American Express, 869 So.2d at 695. In American Express, however, the appellate court emphasized that “sanctions other than dismissal are appropriate in those situations when the attorney, and not the client, is responsible for the error.” 869 So.2d at 695 (emphasis added).
The above guidelines are just that, guidelines. The Florida Supreme Court has, in other cases, offered additional matters for a trial court to consider. When a sanction is entered as the result of failure to comply with a court order, the Supreme Court has held that “[a] deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions [dismissal or default . . .], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) (emphasis added). Against this background, this Court will consider the record in this case as it pertains to the Defendant, United Automobile Insurance Company.
Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or experience. The Court finds that the misconduct at issue lies at the feet of the Defendant itself, i.e., the client. This factor is more specifically addressed in the following paragraph. The Court specifically finds that the misconduct is not the result of neglect or experience of the attorney. The attorney handling this particular file clearly has an overload of cases himself.
Whether the attorney has been previously sanctioned. Because the sanction of a default judgment is a severe sanction, the Court will go beyond the attorney in this case and consider this guideline as it pertains to the client itself. This particular Defendant has been sanctioned dozens of times by this Court alone. Having now handled two different civil divisions and having had the opportunity to review hundreds of files from predecessor judges, the undersigned judge is also personally aware that this Defendant has been sanctioned dozens of times by other judges for similar conduct. The Defendant itself, and not its attorneys, has paid thousands of dollars is sanctions. The client itself then must clearly be aware of the misconduct. And yet, the sanction of fees alone has been unable to remedy the Defendant’s misconduct. It is clear to this Court that if the Defendant is not intentionally attempting to ignore court orders, it is certainly acting with “gross indifference” or “deliberate callousness” in seeking to comply. See Mercer, 443 So.2d at 946. Moreover, the attorneys work directly for the client’s Office of the General Counsel. They have no clients other than United Automobile Insurance Company.
Although the Court cannot make an exhaustive list of sanctions and/or compel orders it has issued against this Defendant in other cases, the Court has been able to compile a representative list from a cursory review of its own “Order” file kept in chambers, as well as a review of clerk files currently in the judge’s office, which include:
· Order Denying Defendant’s Motion to Grant Relief from Admissions, Case No. 04-19563 COCE 53, October 18, 2005 (noting Defendant’s continued failure to comply with court orders).
· Order Granting Plaintiff’s Motion for Default, Case No. 03-13666 COCE 53, July 27, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Second Motion to Enforce, to Strike and for Additional Sanctions, and Order of Default, Case No. 03-22990 COCE 53, May 9, 2005 (noting Defendant’s continued failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Fifth Motion for Sanctions/Striking of Defendant’s Pleadings, and Entering Default Judgment, Case No. 98-20254 COCE 53, Apr. 12, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Fifth Motion for Sanctions/Striking of Defendant’s Pleadings, and Entering Default Judgment, Case No. 98-20254 COCE 53, Apr. 12, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Motion to Strike Defendant’s Pleadings, Enter Default, and Default Judgment, Case No. 04-13524 COCE 53, Feb. 9, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned).
· Order Granting Plaintiff’s Motion for Sanctions, Striking Defendant’s Pleadings, and Entering Default Judgment, Case No. 03-13760 COCE 53, Feb. 8, 2005 (noting Defendant’s failure to change its conduct despite being sanctioned in the amount of $1000, which it failed to timely pay).
· Order Granting Plaintiff’s Motion to Compel, Case No. 04-3524 COCE 53, Jan. 18, 2005.
· Order Compelling Discovery, Case No. 03-14131 COCE 53, Nov. 9, 2004 (Judge Herring).
· Order Granting Plaintiff’s Motion to Compel Supplemental Discovery, Case No. 04-63 COSO 62, Sept. 24, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Supplemental Interrogatories, Case No. 03-2257 COSO 62, Sept. 24, 2004 (awarding fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel, Case No. 03-14131 COCE 53 (Judge Herring).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-7457 COSO 62, Sept. 13, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 04-2651 COSO 62, Sept. 10, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Enforce Court Order, Case No. 03-2105 COSO 62, Sept. 2, 2004 (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-855 COSO 62, Sept. 2, 2004 (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion to Enforce Court Ordered Discovery, Case No. 03-2263 COSO 62, Sept. 2, 2004 (awarding sanctions of $500.00).
· Order to Compel Discovery, Case No. 04-3453 COSO 62, Aug. 23, 2004.
· Order Granting Plaintiff’s Motion to Compel Supplemental Discovery, Case No. 03-7344 COSO 62, Aug. 17, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Responses to Supplemental Discovery, Case No. 03-2257 COSO 62, Aug. 5, 2004 (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion for Sanctions, Case No. 04-3524 COCE 53, Aug. 3, 2004 (Judge Herring) (awarding sanctions of $500.00).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-2105 COSO 62, July 30, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Motion to Compel Discovery, Case No. 03-2263 COSO 62, July 30, 2004 (reserving jurisdiction to award fees as a sanction).
· Order Granting Plaintiff’s Second Motion to Enforce Court Order, Case No. 04-1428 COSO 62, July 15, 2004 (awarding sanctions of $500.00 per day, plus additional $50.00 for each day not in compliance).
· Order of Default, Case No. 04-1428 COSO 62, June 10, 2004 (awarding sanctions of $250.00).
· Order Granting Plaintiff’s Motion to Compel, Case No. 04-3524 COCE 53, June 7, 2004 (Judge Herring).
Whether the client was personally involved in the act of disobedience. As stated above, the Court finds that the client itself was and is personally involved in the act of disobedience in this case.
Whether the delay prejudiced the opposing party through undue expense. This case involves unpaid benefits of less than $5,000.00. And yet, the Court is quite comfortable in concluding that Plaintiff has reasonably incurred a commensurate amount of fees in simply trying to get the information requested — information that it clearly has a right to obtain in order to establish its claim at trial. At this point in this particular case, the Defendant’s actions likely have caused the Plaintiff to have to incur more attorney fees than the claim itself. Although perhaps not true of a claim for a far greater amount, further defense of this claim is simply not warranted.
Whether the attorney offered reasonable justification for noncompliance. The Defendant has offered no credible explanation as to why it has continually failed to comply with this Court’s orders or the rules of discovery. The Court finds that none exists. The Defendant cannot create the problem by consistently providing an apparent insufficient number of attorneys and staff to handle its cases, and then try to claim as an excuse that its attorneys have too much work. The excuse used by the attorney in this case has been used dozens of times before, and yet little has changed.
Whether the delay created significant problems of judicial administration. It is no secret that United Automobile has hundreds of cases pending in the civil division of the Broward County Court. And yet, the undersigned judge has to spend an inordinate amount of time with this party, particularly when compared to other similar cases involving the same type of dispute against other insurers. Much of this Court’s attention is drawn to motion practice involving motions to compel and motion for sanctions against United Automobile, the great majority of which have later been determined to be meritorious. Notwithstanding that these are county court cases, this Court’s own administrative office has advised the Court that it has more than thirty (30) cases involving United Automobile Insurance Company as a defendant that are more than two years old, clearly beyond the guidelines set forth in the Rules of Judicial Administration. Indeed, some are more than five years old. As for this particular case, the Court has had to spend more than a day on this file alone to research and draft this Order, in addition to the time spent at the hearing.
In sum, this Court sees no viable alternative sanction in this particular case. Perhaps the Defendant will begin to take the steps necessary to insure that the Florida Rules of Civil Procedure and orders of the court meet with consistently prompt and complete compliance. Perhaps the Defendant will begin to see that dilatory conduct will not meet with tacit approval by the court. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion is GRANTED. The Defendant’s pleadings are hereby STRICKEN, and a default is hereby entered against the Defendant. The Plaintiff is hereby directed to submit a proposed Final Judgment to the Court conforming to the terms of this Order.
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