15 Fla. L. Weekly Supp. 279b
Insurance — Personal injury protection — Mediation — Failure to appear — Sanctions — Default — Where insurer willfully failed to comply with order to appear at mediation and pay mediation fee prior to mediation and failed to respond to order to show cause why default should not be entered, insurer’s pleadings are stricken and default is entered as to liability
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Lina Herrera) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-010149 COCE (53). February 7, 2007. Robert W. Lee, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Adam Shapiro, Office of the General Counsel, United Automobile Insurance Company.
ORDER OF DEFAULT
THIS CAUSE came before the Court February 2, 2007, on the Court’s Order to Show Cause, and the Court’s having reviewed the entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:This action was filed on July 12, 2006. The Defendant was served on August 1, 2006. On August 14, 2006, at the Defendant’s request, Judge Kathleen Ireland invoked the Rules of Civil Procedure and the case was randomly reassigned to Division 53. On January 2, 2007, this Court entered its Order Appointing a Mediator in County Court. On January 3, 2007, Notice setting mediation was sent to both Plaintiff and Defense counsel. Mediation was set for January 23, 2007. The Order specifically provided that this Court had ordered mediation and that both parties and their counsel were required to attend. The Order specifically advised the parties that failure to appear for mediation at the scheduled time may result in the imposition of appropriate sanctions by the Court, including the entry of default or dismissal. Moreover, the Order provided that the Mediation fee must be paid by the parties prior to commencement of the mediation.
On January 23, 2007, the mediation was attended by the Plaintiff’s corporate representative and Treasurer Len Brown and counsel for the Plaintiff Emilio R. Stillo. The Defendant and Defense counsel both failed to appear at the mediation. Further, the Defendant did not pay the court ordered mediation fee.
On January 25, 2007, the Court issued an Order to Show Cause as to why a default should not entered, the pleadings struck or sanctions imposed for failing to appear at the Court Ordered mediation of January 23, 2007 as well as failing to pay the mediation fee as Ordered.
The Order to Show Cause was set for Friday February 2, 2007 at 10:30 a.m. The Order to Show Cause specifically required the attendance of both the attorney for United Automobile Insurance Company as well as the corporate representative of United Automobile Insurance Company. Neither the attorney nor the corporate representative appeared at the Order to Show Cause hearing of February 2, 2007.
The Defendant has continued to fail to abide by orders of this Court on numerous occasions. The Defendant was clearly placed on notice that the failure to appear at mediation as ordered could result in a default being entered against him. The Defendant was also Ordered to pay the mediation fee before the mediation began. Further, Defendant was given an opportunity to show cause at an evidentiary hearing as to why a default or sanctions should not be entered. Defendant and its corporate representative both failed to appear at the Order to Show Cause hearing as well as the mediation. Notwithstanding such admonitions, the Court finds that the Defendant has willfully failed to comply with this Court’s orders. The Defendant has offered no explanation as to why he has failed to comply with this Court’s orders. Accordingly, it is hereby
ORDERED and ADJUDGED that considering the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994), the Defendant’s pleadings are hereby STRICKEN and a default entered against the Defendant as to liability. In sum, the court sees no viable alternative sanction in this particular case.
