14 Fla. L. Weekly Supp. 1037b
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — No abuse of discretion in entering order excluding evidence and testimony due to insurer’s failure to disclose witness information where insurer exhibited continuing pattern of noncompliance with discovery orders, and trial court had admonished insurer for noncompliance and clearly warned that future noncompliance would result in sanctions tantamount to default
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. DAVID NAPOLI, etc., Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 06-5861(11), 06-8471(13). July 17, 2007. Counsel: Roberts J. Bradford, Jr. and June Hoffman, Fowler White et al.
ORDER AFFIRMING LOWER COURT JUDGMENT IN CONSOLIDATED CASES
(BARRY E. GOLDSTEIN, J.) THIS CAUSE having come before the court upon the consolidated appeals taken by defendant UNITED AUTOMOBILE INSURANCE COMPANY from the lower court’s ruling in favor of Plaintiff DAVID NAPOLI, DC, after trial was held therein. The court having considered the Statement of Evidence and Proceedings filed by Defendant, the Initial Brief of Appellant, the Answer Brief, and the Reply Brief, the record, and the court files of the cases sub judice, it is thereupon
ORDERED AND ADJUDGED:
1. That this court has jurisdiction over the parties and subject matter of this appeal pursuant to Fla. R. App. P. Rule 9.030. The Appellant has failed to establish that the lower court committed any abuse of discretion when it entered an Order of Exclusion of Evidence and Testimony in the cases consolidated by this appeal.
2. A review of the history of the cases makes it clear that UNITED AUTOMOBILE INSURANCE COMPANY received more than adequate and fair notice and generous opportunity to comply with court orders, including discovery orders, but still failed to comply, to such an extent that Orders to Show Cause had to be entered by the court in order to attempt to bring Appellant into compliance. Rather than being insignificant, Appellant’s later failure to disclose witness information, whether or not the trial date was then set, was just one of a series of failures to comply with the court’s orders. Counsel’s arguments regarding the extensions afforded attorneys due to Hurricane Wilma do not explain away its numerous refusals to cooperate with prior orders, or with the subject order requiring disclosure.
Indeed, the subject order supports that the lower court clearly found a continuing pattern of disregard for its orders. Given that the lower court had already admonished Appellant for its repeated noncompliance, and had clearly and plainly warned Appellant that the result of future noncompliance with court orders would result in sanctions tantamount to default against it, Appellant’s concern should have been exercised during the proceedings as deadlines came and went, and not now, as it scrambles to put the best face possible on its blatantly contemptuous disobedience of the lower court. This court finds that the lower court’s Orders to Show Cause and orders dealing with missed deadlines is sufficiently tantamount to a finding of “willful and contumacious” conduct, thus supporting the sanction imposed. This court, like that in Commonwealth Savings and Loan Association v. Tubero, 569 So.2d 1271 (Fla. 1990), agrees that no “magic words” are required, but only a finding that conduct was equivalent to willfulness or deliberate disregard. In these consolidated cases, five (5) lawful orders of the County Court were disregarded. There is competent and substantial evidence in the record supporting the trial court’s actions and sanctions and refuting that any abuse of discretion occurred.
3. As reasonable minds might differ as to the propriety of the action taken, there can be no finding of an abuse of discretion. This court holds that no such abuse was exercised on any issue at any time by the lower court. The abuse that is plain to see is that effected by Appellants in refusing and failing to comply with court mandates.
4. Finally, the award of attorneys’ fees was proper pursuant to Fla. Stat. Sections 627.736(8) and 627.428.
WHEREFORE, this court finds the lower court acted properly and without abuse of discretion, but rather with proper competent facts before it, entered the subject orders against Appellants and the lower court’s orders sanctioning Appellants in both cases and the results of said orders are hereby affirmed.
