13 Fla. L. Weekly Supp. 394c
Insurance — Personal injury protection — Discovery — Depositions — Failure to attend — Sanctions — Where insurer’s litigation adjuster failed to appear for deposition regarding insurer’s claim for attorney’s fees awarded as sanction against medical provider in underlying PIP suit and failed to obtain protective order or provide any reason for non-appearance, and insurer’s counsel also failed to appear for deposition after numerous attempts by provider’s counsel to coordinate deposition, conduct is deliberate contumacious disregard for trial court’s authority and grounds for award of sanctions — Insurer’s motion for award of fees and costs is stricken
RURAL/METRO CORPORATION as assignee of Xiomara Lebron, Plaintiff, vs. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-3361. January 23, 2006. John R. Sloop, Judge. Counsel: Richard Oliver Hale, IV, Orlando. Dale T. Gobel, Orlando.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S MOTION TO AWARD FEES AND COSTS
THIS MATTER having come before this Court on Plaintiff’s Motion to Strike Defendant’s Motion to Award Fees and Costs or in the Alternative to Continue this Hearing and this Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:
Facts
1. During the pendency of litigation, the Court awarded the Defendant as a sanction, reasonable attorney’s fees and costs surrounding the Defendant’s taking of the deposition of Cynthia Holt in this matter.
2. On September 26, 2005, the Plaintiff voluntarily dismissed its Complaint.
3. On October 10, 2005, counsel for the Defendant, Dale Gobel contacted the Plaintiff requesting hearing time for its Motion to Award Attorney’s Fees and Costs, pursuant to this Court’s Order, and the Plaintiff provided same.
4. On that same date, the Plaintiff requested the deposition of Mr. Gobel as well as the litigation adjuster assigned to this particular file in an effort to discern the reimbursement request of the Defendant. Mr. Gobel failed to respond.
5. The Plaintiff followed up its initial request on October 25, 2005, with written correspondence to Mr. Gobel once again requesting available dates for deposition. Once again, Mr. Gobel failed to respond.
6. The Plaintiff followed up its request a third time on November 1, 2005, and indicated its intent to unilaterally set the requested depositions should the Defendant continue to refuse to furnish a response. Mr. Gobel failed to respond.
7. On November 10, 2005, the Plaintiff was forced to unilaterally set the deposition of Mr. Gobel, and his adjuster, after failing to secure a response from the Defendant for approximately one month.
8. On November 15, 2005, the Plaintiff received a Motion for Protective Order indicating Mr. Gobel would be in Georgia on the date scheduled for deposition. The deposition of the adjuster was not addressed in Defense Counsel’s Motion.
9. Upon receipt of the Motion for Protective Order, Plaintiff once again contacted Mr. Gobel to obtain any available date for the depositions to occur prior to Defendant’s scheduled hearing. Mr. Gabel failed to respond.
10. On November 21, 2005, Counsel for the Defendant and the Defendant’s adjuster, Joffer Faria, failed to appear for their scheduled deposition in this matter.
11. On the date of the hearing in this matter, Mr. Gobel sent his associate to argue this matter and for the first time, produced an affidavit executed the day prior to the hearing and time sheets showing what he intended to claim as taxable attorneys fees. The affidavit included paralegal time as well. There was no indication of the hourly rate being sought by either. Further, there was no supporting documentation for the costs being sought and no proof of the contracted amount the Defendant paid the Defense firm. The Plaintiff had absolutely no opportunity to cross examine the Defense counsel or the adjuster regarding these issues.
12. The Defendant of it’s own accord and through it’s counsel has willfully and intentionally refused to cooperate in any manner whatsoever with Plaintiff’s numerous requests for basic discovery regarding the Defendant’s claim for fees and such actions by counsel and the Defendant will not be tolerated by this Court.
Legal Analysis
This Court enjoys broad discretion to award sanctions when parties fail to avail themselves to the Florida Rules of Civil Procedure or fail to participate in discovery in accordance with Florida Rule of Civil Procedure 1.380(d). Bellflower v. Cushman & Wakefield of FL, Inc., 570 So.2d 1130 (2nd DCA, 1987). In the case at bar, the Defendant’s adjuster failed to appear for deposition after failing to file a Protective Order and failing to provide any reason for non-appearance. Additionally, Defense Counsel failed to appear for deposition after numerous attempts by Plaintiff’s counsel to coordinate same. This conduct represents a deliberate and contumacious disregard for the trial court’s authority and is grounds for an award of sanctions. Mercer v. Raine, 443 So.2d 944 (Fla. 1983).
Whereby, it is ORDERED AND ADJUDGED that:
1. The Court hereby strikes the Defendant’s Motion to Award Attorney’s Fees and Costs.
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