13 Fla. L. Weekly Supp. 794a
Insurance — Personal injury protection — Discovery — Failure to comply — Pretrial disclosure of witnesses — Abuse of discretion to exclude testimony of litigation adjuster not listed on insurer’s pre-trial catalog where there would be no prejudice to medical provider in allowing use of adjuster whom provider had deposed — Denial of insurer’s due process right to call witnesses was harmful
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. TOTAL REHAB & MEDICAL CENTERS, A/A/O ALEJANDRO MARTINEZ, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 03-18503 (CACE 08). May 10, 2006. Counsel: Michael J. Neimand, United Automobile Insurance Company, Fort Lauderdale. Neil Gonzalez, Miami. Rina Kaplan, Hollywood, for Appellee.
ORDER AND OPINION
(RONALD J. ROTHSCHILD, J.) THIS CAUSE comes before the Court upon Appellant, United Automobile Insurance, Co.’s appeal of a Final Judgment entered on June 10, 2004. Having reviewed the appellate file, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:
Total Rehab & Medical Centers (hereinafter TRMC) filed a PIP lawsuit against United Automobile Insurance Company (hereinafter UAI) for breach of contract for PIP benefits on October 10, 2001. UAI filed its Answer to Interrogatories on March 21, 2002, wherein it listed Carlos Plana as UAI’s litigation adjuster, and Marilyn Diaz as its claim adjustor. At his deposition taken August 8, 2002, Mr. Plana asserted UAI’s defense of material misrepresentation, stating that the insured did not put his son, who lived with him and had a driver’s license, on his insurance application. Mr. Plana also claimed that the insured breached his insurance contract by not informing UAI that he was using his vehicle for business purposes, namely, a lawn maintenance business.
At trial, TRMC made a motion to exclude any witness not listed on UAI’s pre-trial catalog. The trial court granted TRMC’s motion and did not allow UAI to present any witnesses in front of the jury. A directed verdict was then entered in favor of TRMC on UAI’s misrepresentation defense. A Final Judgment was entered on June 10, 2004 awarding TRMC $5,860.00.
On June 15, 2004, UAI filed its Notice of Appeal, claiming the trial court erred in not allowing UAI’s witnesses to testify because they failed to file a pre-trial catalog. UAI claimed that the trial court abused its discretion because TRMC was not prejudiced. UAI contended that because its interrogatories identified the witnesses and its basis for the affirmative defense of misrepresentation, TRMC could not claim surprise and the resultant prejudice arising from the failure to file the pre-trial catalog. UAI also argued that because the insured’s son lost on the same claim of material misrepresentation, TRMC could not claim surprise or resultant prejudice.
The trial court has discretion to limit the amount of witnesses which may testify for the parties. Fogel v. Mirmelli, 413 So.2d 1204, 1207 (Fla. 3rd DCA 1982). The Supreme Court in Binger v. Control, 401 So.2d 1310 (Fla. 1981), dealt with the confusion in Florida case law regarding pre-trial disclosure of witnesses’ names. The Binger Court held a court has the authority to exclude witnesses who were not disclosed according to the dictates of a pre-trial order. Moreover, it is error for a court to exclude a witness that was not disclosed in a pre-trial catalog when the “listing of such witness was not specifically required by pre-trial order of the court.” Fogel at 1206. However, the case at bar does not fall squarely into this realm of facts, because the testimony shows that a pre-trial conference was not held in this case (See T.11-12), and because the record is devoid of a pre-trial order. Without such evidence, this Court must examine the main thrust of the law concerning disclosure of witnesses under the dictates of Florida Civil Rules of Procedure 1.200(c), which concerns whether the use of the undisclosed witnesses will prejudice the objecting party. Binger at 1314.
Prejudice is the “surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” Id. at 1314. One of the factors that courts look to when exercising this discretion is the objecting party’s independent knowledge of the existence of the witness. Id. In the present case, TRMC deposed Carlos Plana. Further, the trial court judge stated on the record “this is not a surprise.”[emphasis added].
Additionally, a party’s right to call witnesses is an important due process right. “[T]he excluding of the testimony of a witness being a drastic remedy which should be invoked only under the most compelling circumstances.” Fogel at 1208. Even in cases where a pre-trial witness list is done by the parties pursuant to a pretrial order, “ ‘excluding the testimony of a witness is a harsh remedy which should be invoked sparingly.’ ” Tomlinson-McKenzie v. Prince, 718 So.2d 394 (Fla. 4th DCA 1998) quoting Aquila-Rojas v. City Management Group Corp., 606 So.2d 765 (Fla. 3d DCA 1992). This Court agrees with the Appellant that the witness exclusion in the instant case was harmful.
Accordingly, it is hereby,
ORDERED AND ADJUDGED that the Final Judgment Execution Withheld entered by the trial court is REVERSED and REMANDED for further proceedings consistent with this opinion. It is also,
ORDERED AND ADJUDGED the statutory fee award is REVERSED.
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