15 Fla. L. Weekly Supp. 171c
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Attorney’s fees and costs assessed as sanction for willful violation of discovery order
OLGA PENA-ORTIZ, Plaintiff, vs. COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO, INC., Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 07-CC-997. December 4, 2007. Jerry L. Brewer, Judge. Counsel: Michael Udowychenko, Udowychenko & Garcia, P.A., Kissimmee, for Plaintiff. Johanna W. Clark, Carlton Fields, P.A., Orlando, for Defendant.
ORDER ON MOTION TO DISMISS COMPLAINT AND FOR ATTORNEY’S FEES AND COSTS AS SANCTIONS FOR FAILING TO COMPLY WITH THE COURT’S ORDER
THIS CAUSE was heard on Defendant’s Motion to Dismiss Plaintiff’s Complaint and for Attorneys’ Fees and Costs as Sanctions for Failing to Comply with this Court’s Order (“the Motion”) on November 14, 2007. The Court, having considered the Motion, the record, and arguments of counsel, and being duly advised in the premises
ORDERS, DECREES, and ADJUDGES:
1. In January 2007, the Plaintiff, Olga Pena-Ortiz, filed a breach of contract claim against the Defendant, Cooperativa de Seguros Multiples de Puerto Rico, Inc. (“Cooperativa”), claiming entitlement to PIP benefits under Florida Statute section 627.736 and the insurance policy.
2. On June 27, 2007, Cooperativa served Plaintiff with a Request for Production consisting of 14 requests.
3. On July 26, 2007, Plaintiff filed a Motion for Extension of Time alleging, “Plaintiff requires additional time to obtain appropriate information and documents, review the information with counsel and prepare a response.”
4. Cooperativa set Plaintiff’s Motion for Extension of Time for hearing on August 23, 2007.
5. At the August 23, 2007 hearing on Plaintiff’s Motion for Enlargement of Time, counsel for Plaintiff told the Court that he needed an additional 21 days to respond to Cooperativa’s Requests for Production.
6. Accordingly, the Court Ordered Plaintiff to respond to Cooperativa’s Requests for Production dated June 27, 2007 within 21 days of the hearing, by September 13, 2007 (the “Order”).
7. Plaintiff did not comply with the Order.
8. On September 17, 2007, Cooperativa sent Plaintiff a facsimile advising that Plaintiff was in violation of the Order and advised that Cooperativa would move for dismissal and attorney’s fees if Plaintiff failed to respond to Cooperativa’s discovery by close of business on September 19, 2007.
9. Plaintiff did not respond.
10. On September 20, 2007, Cooperativa filed its Motion which was set for hearing on November 14, 2007.
11. Plaintiff’s response to the discovery and compliance with the Order was 90 days overdue.
12. This Court finds that Plaintiff and her counsel willfully violated this Court’s Order of August 23, 2007 by failing to respond to Cooperativa’s discovery.
13. Having found a willful violation of the Court Order, and pursuant to Rule 1.380, Fla.R.Civ.P., Plaintiff and her counsel, Michael Udowychenko, are responsible for the attorney’s fees and any reasonable costs that Cooperativa has incurred in filing the Motion to obtain compliance with the discovery and the steps taken by Cooperativa since that time, up to and including the hearing on Cooperativa’s Motion.
14. This Court denies Cooperativa’s Motion to Dismiss the Complaint at this time, but reserves ruling on the amount of attorney’s fees and costs to be awarded to Cooperativa as a result of the violation.
