15 Fla. L. Weekly Supp. 286a
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Insurer’s failure to comply with discovery and with court orders relating to payment of monetary sanctions and to attendance at mediation and hearing on motion for sanctions warrants striking of pleadings and entry of default where misconduct is not fully result of neglect or inexperience of counsel who claims blame for misconduct, but is attributable to willful, deliberate and contumacious conduct on part of insurer
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Martha Buchely), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-11696 COCE 53. December 4, 2007. Robert W. Lee, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Johane Altenor, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDED MOTION TO STRIKE PLEADINGS AND ENTER DEFAULT FINAL JUDGMENT
THIS CAUSE came before the Court on September 27, 2007 and November 1, 2007 for hearing of the Plaintiff’s Motion to Strike Pleadings and Enter Default Final Judgment, and the Court’s having reviewed the Motion; heard argument; reviewed the relevant legal authorities; made a thorough review of the matters filed of record; and been sufficiently advised in the premises, the court finds as follows:
Findings of Fact:
1. On October 20, 2006, the Plaintiff propounded Expert Witness Interrogatories onto the Defendant.
2. The Defendant did not respond. On May 29, 2007, Plaintiff’s counsel sent correspondence to the Defendant inquiring as to the status of the overdue discovery.
3. The Defendant did not respond and the Court issued an Ex-Parte Order on June 8, 2007 giving the Defendant 10 days to respond.
4. The Defendant did not comply with the Court Order requiring Plaintiff to file a Motion to Enforce Court Order of June 8, 2007.
5. Prior to hearing on enforcement of the Court’s Order, the Defendant entered an Agreed Order which the Court entered on July 23, 2007 which sanctioned the Defendant $250.00 and required the Defendant to deliver the sanctions and provide responses to the discovery by July 30, 2007.
6. The Defendant did not comply with the July 23, 2007 Order, and did not deliver the sanctions draft until August 17, 2007. Thus, the Defendant violated both the June 8, 2007 Order and July 23, 2007 Order which enforced the June 8, 2007 Order.
7. On June 5, 2007, the Court issued an Order appointing a Court Mediator. The Order provided that the appearance of all parties and their counsel was mandatory. On June 13, 2007, Court Mediation issued a Notice setting mediation for June 28, 2007. On June 28, 2007, Plaintiff and corporate representative Len Brown attended the mediation. Neither the Defendant nor opposing counsel attended the mediation.
8. The Court issued a Rule to Show Cause. The Court discharged the Rule to Show Cause on July 13, 2007. Moreover, the Court sanctioned the Defendant $250.00 which was to be paid within 10 days. Said sanctions were due on July 23, 2007. The Defendant did not deliver the sanctions until July 25, 2007. Thus, the Defendant violated both the Court’s June 5, 2007 and July 13, 2007 Order. On September 6, 2007, the parties appeared before the Court on the matter of enforcing the Court’s Order of July 20, 2007. The Court granted the Plaintiff’s motion and sanctioned the Defendant another $250.00 payable within 10 days. Said compliance would have been due on September 17, 2007 at the latest. As of close of business on September 19, 2007, at which time Plaintiff drafted the instant motion, Defendant still had not furnished the Court ordered sanctions in order to comply with the Court’s September 6, 2007 Order.
9. On September 11, 2007, this Court set Plaintiff’s Motion to Strike Pleadings and Enter Default Final Judgment for hearing for September 27, 2007. This hearing date was coordinated with both counsels’ office. Defense counsel failed to appear at the hearing.
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 an 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 are 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 compliance; 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.
In Kozel, as in American Express, the sanction of dismissal was used “based solely on the attorney’s neglect.” The Supreme Court directed that the trial court reconsider its 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 regard 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). The Mercer case continues to be valid law. See Smith v. City of Panama City, 951 So.2d 959, 959-60 (Fla. 1st DCA 2007).
Against this background, this Court will consider the record as it pertains to the Defendant, United Automobile Insurance Company in this case.
Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or experience. In this case, the Plaintiff has had to file at least four motions to compel or for sanctions. These motions have resulted in four court orders, all of which the Defendant has failed to comply. The Court finds that the misconduct at issue lies at the feet of the Defendant itself, i.e., the client. Although in this case the attorney claims personal responsibility for the conduct giving rise to the instant motion, the Court specifically finds that the cumulative misconduct is not fully the result of neglect or experience of the attorney. Based on the record in this case, and the matters presented at both hearings, the Court finds that the Defendant has willfully failed to comply with this Court’s orders. See Knight v. Lawrence, 14 Fla. L. Weekly Supp. 1017 (11th Cir. Ct. 2007). This factor is more specifically addressed in the following paragraph.
Whether the attorney has been previously sanctioned. Because the sanction of a default is a severe sanction, the Court will go beyond the attorney 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 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 has paid thousands of dollars in sanctions. The client itself then must clearly be aware of the misconduct. And yet, the sanctions of fees alone have been unable to remedy the Defendant’s misconduct. See Michalak v. Ryder Truck Rental, Inc., 923 So.2d 1277, 1280 (Fla. 4th DCA 2006) (ultimate sanction may be appropriate when prior sanction efforts are unsuccessful). It is clear to this Court that if the Defendant is not intentionally attempting to ignore court orders, it is certainly action with “gross indifference” or “deliberate callousness” in seeking to comply. See Mercer, 443 So.2d at 946. See also Smith, 951 So.2d at 959-60 (ultimate sanction may be appropriate when party “knows what is going on” but “disregards the consequences”). Moreover, the attorneys involved work for the client’s Office of the General Counsel. They have no other clients than United Automobile Insurance Company. On November 1, 2007, this Court had a hearing in which the Defendant was provided three weeks’ notice of 34 prior sanction orders entered against it in other cases. The Defendant was provided an opportunity to respond, but offered no acceptable excuse.
Whether the client was personally involved in the act of disobedience. The Court finds that the client itself was personally involved in the act of disobedience.
Whether the delay prejudiced the opposing party through undue expense. This case involves medical expenses of just over $7,000, and yet, the Court is quite comfortable in concluding that Plaintiff has reasonably incurred far more fees than this in simply trying to get the Defendant to do what it is supposed to do in this case.
Whether the attorney offered reasonable justification for non-compliance. The Defendant has offered no credible explanation as to why it has continually failed to comply with this Court’s Orders. In the instant case, the Defendant’s attorney has attempted to excuse the misconduct by claiming other attorneys (although also in-house) handled the previous cases involving failure to comply. The Court rejects the suggestion that each attorney gets his or her own bite at the apple, while the client does little to ensure consistent, prompt compliance with court orders and discovery rules. As of the date of the original hearing, the Defendant still had not complied with this Court’s Order.
Whether the delay created significant problems of judicial administration. As stated by the Kozel court, “[i]n the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements.” 629 So.2d at 818. See also Michalak, 923 So.2d at 1280. 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, 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 motions for sanctions against United Automobile, the great majority of which have later been determined to be meritorious. Notwithstanding that these are county court cases, the 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. 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.
The only factor in Defendant’s favor is that the Defendant’s attorney has attempted to accept responsibility as an isolated instance. In light of the backdrop of this case indicating the Defendant’s gross indifference, the Court refuses to allow the attorney to shoulder the blame for the client’s misconduct. The Defendant has already been sanctioned in this case repeatedly, to no avail. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s pleadings arehereby STRICKEN and a default entered against the Defendant.
