15 Fla. L. Weekly Supp. 282b
Insurance — Personal injury protection — Fraud on court — Sanctions — Where insurer repeatedly and contumaciously violated court orders and falsely attested that medical bills at issue were applied to deductible and as to amount expert witness was paid for participation in another trial, insurer’s pleadings are stricken and default is entered
SOUTH FLORIDA PAIN & REHABILITATION, P.A. (a/a/o Hanna Giraldo) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-018454 COCE (52). January 11, 2008. Jay S. Spechler, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Russel Kolodziej, Office of the General Counsel, United Automobile Insurance Company, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE PLEADINGS FOR VIOLATIONS OF COURT ORDERS OF FEBRUARY 7, 2007, SEPTEMBER 7, 2007, OCTOBER 10, 2007, NOVEMBER 15, 2007 and FOR FRAUD UPON THE COURT
THIS CAUSE came before the Court on January 11, 2008 for hearing on Plaintiff’s Motion to Strike Pleadings for Violations of Court Orders of February 7, 2007, September 7, 2007, October 10, 2007, November 15, 2007, as well as for fraud upon the Court and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
1. On September 8, 2005, Hanna Giraldo was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of these injuries, Ms. Giraldo sought treatment from various medical providers including the Plaintiff.
3. The Defendant received the bills as alleged in Plaintiff’s complaint.
4. The Defendant’s own litigation adjuster conceded in deposition the Defendant did not respond to the pre-suit Demand dated August 6, 2006, submitted by counsel for the Plaintiff.
5. The Defendant filed an Answer and Affirmative Defenses on March 15, 2007, citing Four Affirmative Defenses. Defendant’s Second Affirmative Defense denied payment after October 20, 2005 as not being reasonable, necessary or related based on the opinion of Dr. Glen Siegel DC. Defendant’s Fourth Affirmative Defense states in part “Defendant states that Plaintiff’s bill for medical services was applied towards this Claimant’s deductible, therefore Defendant is not liable for payment of said bill, nor is said bill overdue”.
6. On February 7, 2007, the Court entered an Order requiring the Defendant to answer all discovery propounded by the Plaintiff within 30 days. The Defendant did not timely comply necessitating the Plaintiff’s filing of a Motion to Enforce Court Order of February 7, 2007 and for Sanctions. The Motion was set for hearing on April 4, 2007. The Defendant had not complied as of the hearing and entered an Agreed Order requiring the overdue discovery be furnished to the Plaintiff by April 10, 2007 as well as agreeing to sanctions in the amount of $250.00 dollars.
7. On September 7, 2007, the Court issued its Pre-Trial Order requiring all counsel of record to file a pretrial stipulation by December 31, 2007. Moreover, the court advised the parties in that Order:
FAILURE TO TIMELY COMPLY MAY RESULT IN THE DISMISSAL OF THE CLAIM, FINAL JUDGMENT OR STRIKING OF WITNESS AND EXHIBITS.
The Plaintiff timely complied on December 27, 2007. The Defendant did not comply and as of the hearing of January 11, 2008, remains in contumacious and willful disregard of the Court’s Order.
8. On October 10, 2007, the Court entered an Order requiring responses to Expert Witness Interrogatories within 15 days. The Defendant did not timely comply necessitating the Plaintiff’s filing another Motion to Enforce Court Order. On November 15, 2007, the Court granted Plaintiff’s Motion and sanctioned the Defendant $325.00 dollars.
9. On November 15, 2007, the Court also ordered the Defendant to provide better responses to their tardy compliance with the Court Order of October 10, 2007. The Court Ordered the Defendant to provide better responses to #6, #7 and #9 within 20 days. Question #6 of Plaintiff’s Expert Witness Interrogatories asked the Defendant for, in part, the hourly rate charged by each expert for appearing at trial. Defendant’s better response was that their expert Dr. Glenn Siegel was paid $100.00 for the one and only trial he has attended. The Defendant still has not complied with the Court’s Order requiring the Defendant to furnish their Expert’s hourly rate for appearing at trial and the Defendant remains in contumacious disregard of the Court’s Order of November 15, 2007.
10. On April 2, 2007, the Defendant furnished a verified response to Interrogatories, stating the following under oath: “Defendant states that Plaintiff’s bill for medical services was applied towards this Claimant’s deductible, therefore Defendant is not liable for payment of said bill, nor is said bill overdue. On June 18, 2007, the following exchange occurred with the litigation adjuster during deposition:
Q: So you’d agree that at no point in time could the deductible have applied to this claim?
A: Correct.
11. On November 19th 2007, the Defendant furnished a verified response to Expert Witness Interrogatories attesting under oath that“Dr. Siegel was paid $100.00 dollars for the one and only trial he has attended (Care Medical Center (W. Martin), Broward County Ct. Case 05-04876 COCE 51”. On December 11, 2007, a different Plaintiff’s counsel, Cris Boyar, in Broward Court Case 06-0084566 COCE 55 took the deposition of Dr. Glen Siegel and the following exchange took place:
Q: And then you had another trial called All Care Medical Patient Willie Martin in May of 2006; do you remember that one? (page 64, line 24).
A: Yeah.
Q: Do you remember how much you were paid for that?
A: $1,000.
Thus, the Defendant’s Expert, Dr. Glen Siegel, was paid TEN TIMES what Defendant swore under oath he was paid.
12. In considering Defendant’s repeated violations of Court Orders, the Court considers the factors set out in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994) in determining whether to enter a default judgment as a sanction. A-1 Mobile MRI, Inc. (Osvaldo Placeres) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 987a (Broward Cty. Ct. 2005, Judge Robert W. Lee); Marlon Ellis v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 498a (Broward Cty. Ct. Judge Robert W. Lee). 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.” A-1 Mobile MRI, Inc. (Osvaldo Placeres) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 987a (Broward Cty. Ct. 2005, Judge Robert W. Lee); Marlon Ellis v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 498a (Broward Cty. Ct. 2005, Judge Robert W. Lee) citing Mercer v. Raine, 443 So.2d 944 (Fla. 1983) (emphasis added) and Smith v. City of Panama City, 951 So.2d 959, 959-60 (Fla. 1st DCA 2007). The Court has considered the above factors in the instant case.
13. In addition to Defendant’s repeated and contumacious violations of Court Orders, the Plaintiff has moved to strike Defendant’s pleadings for fraud upon the Court. A fraud on the Court occurs where a party has sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter by improperly and unfairly hampering the presentation of the opposing party’s case. See Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998) citing with approval Aoude v. Mobile Oil Corporation, 892 F.2d 1115 (1st Cir. 1989). As the Court stated in Cox v. Burke, supra:
The integrity of the civil process depends on the truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.
14. Once the Court determines there was a fraud perpetrated on the Court, the only appropriate remedy is the striking of Defendant’s pleadings. See Morgan v. Campbell, 816 So.2d 251 (Fla. 2nd DCA 2002) and Distefano v. State Farm Mutual Automobile Insurance Company, 846 So.2d 572 (Fla. 1st DCA 2003). Appellate Courts have upheld a trial court’s striking of an insurer’s pleadings when an adjuster files a fraudulent affidavit. United Automobile Insurance Company v. Hialeah Medical Associates, Inc., 11 Fla. L. Weekly Supp. 885b (11th Judicial Circuit 2004). In Hialeah, United Automobile Insurance Company’s adjuster filed a fraudulent affidavit in support of a motion for summary judgment. Id.
15. In considering all of the above in the instant case in its totality, the Court finds it proper to strike the Defendant’s pleadings.
ORDERED AND ADJUDGED THAT the Defendant’s pleadings are hereby STRICKEN and a default entered against the Defendant.
