16 Fla. L. Weekly Supp. 593a
Online Reference: FLWSUPP 166GODOY
Insurance — Personal injury protection — Mediation — Failure to appear — Sanctions — Neither medical provider’s attorney nor staff member of law firm can be representative of provider when mediation order requires provider’s appearance at mediation, even if provider has given purported representative full authority to settle case — Dismissal is not warranted where provider offered some legal argument to support conduct and complied with mediation order after motion for sanctions was filed — Attorney’s fees awarded as sanction
M.R.I. ASSOCIATES OF AMERICA, LLC (a/a/o Cintia Godoy), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-875 COCE 53. March 19, 2009. Robert W. Lee, Judge. Counsel: Joseph R. Dawson, Dawson & Finkelstein, LLP, Fort Lauderdale, for Plaintiff. David Hwalek, Matt Hellman, P.A., Plantation, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS AND/OR MOTION FOR SANCTIONS
THIS CAUSE having come before the Court on February 11, 2009 and March 12, 2009 for hearing of the Defendant’s Motion to Dismiss and for Sanctions, and the Court’s having reviewed the Motion and entire Court file; received evidence and made findings of credibility; and reviewed the relevant legal authorities, finds as follows:
Background:On July 29, 2008, this Court entered its Order Referring Case to Mediation. The Order included a provision which provided in paragraph 4:
The appearance of all parties, and their counsel, is MANDATORY. The attorney must have full and complete authority to settle from the client and authority to execute any mediation agreement on behalf of the client, without further consultation, if the Court has granted the absence of a party. If a business entity (i.e. an insurance company, corporation, association, partnership) is a party, a representative of that company shall also appear having full authority to settle. Full authority means the individual representing the plaintiff has the authority to dismiss the claim and to pay up to the full amount of the counterclaim and the individual representing the defendant has the authority to pay up to the full amount of the claim.
(Emphasis added). Court Mediation Services set the mediation for August 27, 2008 at 12 noon.
On the date of the scheduled mediation, Tobby Weinberg, as agent for MRI Associates of America (the Plaintiff), executed a written agreement giving “Dawson & Finkelstein, LLP and any employee of the said law firm as an agent of MRI Associates of America in whom we grant full and complete authority to negotiate settlement for the purposes of mediation.” The Court did not, however, excuse the party’s appearance at mediation.
Plaintiff’s counsel attended the mediation with its office receptionist, Edna Cherry, as the person counsel designated as the client’s representative. The case did not settle at mediation.
At some point thereafter, Defense Counsel took the deposition of Tobby Weinberg. The deponent did not know Edna Cherry or who she was. It was shortly thereafter that Defense Counsel was able to piece together that Edna Cherry was an employee, not of MRI, but rather of Dawson & Finkelstein, LLP, the Plaintiff’s lawyers.
On January 12, 2009, the Defense served its Motion to Dismiss and/or Motion for Sanctions Against the Plaintiff. In its Motion, the Defendant argued that the Plaintiff violated the terms of the mediation order, particularly the language providing that “[b]oth parties and their counsel are required to attend [. . .]. Failure to appear for mediation [. . .] may result in the imposition of appropriate sanctions by the Court, including the entry of default or dismissal.” The Defendant further argued that “Plaintiff’s attorney attendance with his secretary/receptionist provided the appearance that Plaintiff’s party was in attendance at the mediation, and in compliance with the Court’s Order. This is not the first case that a deliberate disregard for a Mediation Order has occurred. The Defendant will present additional cases in which Plaintiff’s counsel has not brought the party to the case, but only an employee of the Plaintiff’s counsel’s law firm.”
At the final hearing in this case, the Plaintiff stipulated that it had in fact participated in many mediations over the past several years in which counsel brought various employees of its firm as the client “representative.” In addition to its receptionist, the firm brought secretaries and even two law clerks from Nova Southeastern University. The Plaintiff argued that the language of the Mediation Order did not limit who could be the client representative, and under principles of agency, the client could make any person its agent, including any employee of its retained law firm.
Conclusions of Law:The law of Florida is clear that a party’s attorney cannot also be the “representative” of that party when a mediation order requires the party’s appearance at mediation. Segui v. Magrill, 844 So.2d 820, 821 (Fla. 5th DCA 2003). This is true even if the party has given the attorney full authority to settle the case. Id.
In the Court’s view, Plaintiff’s agency argument is simply not availing. Clearly, a lawyer is generally an agent of its client. Andrew H. Boros, P.A. v. Arnold P. Carter, M.D., 537 So.2d 1134, 1135 (Fla. 3d DCA 1989). This Court does not see any distinction between the lawyer and its law firm employees. If a lawyer cannot be the party representative at a court-ordered mediation, neither can a staff member of that law firm. Otherwise, any law firm could easily circumvent the requirement to have a party representative at the mediation.
Moreover, any “authority” given to a firm’s staff member is, in this Court’s view, nothing more than an illusory grant of authority. The Court finds it difficult to believe that a mere staff member would have sufficient knowledge of the case to offer any meaningful role in mediation. Additionally, the Court cannot envision a staff member disagreeing with counsel (the employee’s boss) as to whether or not an offer should be made or accepted. In the instant case, it was clear that the client had no communication with Edna Cherry concerning the issues and possible settlement of the case.
Finally, the language of the Plaintiff’s own agency agreement, noted above, makes the law firm its agent. For purposes of mediation in this case, the client’s attempt to do so is simply ineffective. See Segui.
When a party violates a mediation order by failing to appear, that party is responsible, at a minimum, for both fees and costs. Carbino v. Ward, 801 So.2d 1028, 1031 (Fla. 5th DCA 2001). The Defendant, however, is also seeking dismissal. The Court does not find Plaintiff’s conduct in this case to be of the nature requiring dismissal. See Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994). The Plaintiff offered a legal argument, although an unavailing and tenuous one, to support its conduct. Additionally, as soon as the Defendant’s Motion was filed, the Plaintiff began to clearly comply with this Court’s mediation order in other cases. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss and/or Motion for Sanctions is denied as to dismissal but granted as to sanctions. The Plaintiff, M.R.I. Associates of America, LLC, is hereby sanctioned the sum of $1,285.00, representing 3.5 hours of attorney time at the rate of $350.00 per hour, plus the mediation fee of $60.00. Such sum shall be paid directly to defense counsel within 15 days of the date of this Order.
