16 Fla. L. Weekly Supp. 779b
Online Reference: FLWSUPP 168KERSA
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Default — Where insurer has repeatedly failed to comply with court orders compelling discovery and orders to pay sanctions imposed for noncompliance, default is entered in favor of insured
SHERLAND KERSAINT, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court 17th Judicial Circuit in and for Broward County. Case No. 07-002723 CONO (71). June 10, 2009. Louis H. Schiff, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Sean Sweeney, for Defendant. Anthony J. Perez.
ORDER STRIKING DEFENDANT’S PLEADINGS AND ORDER ENTERING DEFAULT IN FAVOR OF THE PLAINTIFF
THIS CAUSE came before the Court on May 8, 2009 on Plaintiff’s Motion to Strike Pleadings and Enter Judgment in Favor of the Plaintiff. This Court, having reviewed the entire file, considered argument of counsel, reviewed all the relevant legal authorities, and otherwise being advised in the Premise, makes the following findings:
1. This lawsuit arises out of the denial of Personal Injury Protection (“PIP”) benefits on behalf of the Plaintiff, Sherland Kersaint, an insured of the Defendant, United Automobile Insurance Company, (“UNITED”) for medical services provided to the Plaintiff.
BACKGROUND:
2. On or about March 22, 2007 Plaintiff filed its Complaint.
3. Process was served on the registered agent for the Defendant by the Chief Financial Officer of the State of Florida on May 15, 2007.
4. Defendant failed to respond to Plaintiff’s Complaint and on June 7, 2007 a Clerk’s Default was entered.
5. Subsequent to the Default being entered the Defendant contacted Plaintiff and requested an extension of time to respond to Plaintiff’s Complaint. The Plaintiff agreed to the extension and Defendant’s response was due on or before June 18, 2007.
Defendant failed to respond.
6. On September 19, 2007, a hearing on Plaintiff’s motion for default was held before this Honorable Court. After approximately 30 minutes of argument, this Court continued the hearing and a one hour hearing was scheduled for November 7, 2007.
7. At the conclusion of the second hearing this Court entered a ruling granting Defendant’s motion to vacate default. However, as a condition precedent to Defendant asserting a defense in this case, this Court awarded sanctions in the amount of $2,300.00 to be paid on or before November 26, 2007.
Defendant failed to timely comply.
8. On November 9, 2007 Plaintiff served Defendant with its initial discovery including a Request for Admissions, Request to Produce and Interrogatories. Defendant’s responses were due on or before December 14, 2007.
Defendant failed to timely and/or properly respond.
9. On December 11, 2007, Plaintiff served her Renewed Motion For Default. A hearing was set for February 8, 2008.
10. Notwithstanding this Court’s Order dated November 26, 2007, Defendant’s failure to comply with discovery request, as well as the pending hearing on Plaintiff’s Motion for Default, on January 10, 2008 Defendant served Plaintiff with its Amended Answer and Affirmative Defenses, a Motion to Amend Answer and Affirmative Defenses, a Motion for Final Summary Judgment, and a Notice of Hearing on same.
11. In addition to the above Motions, Defendant served Plaintiff with its initial discovery request including a Request for Admissions, Request to Produce, and Interrogatories.
12. On January 18, 2008 Plaintiff filed its Objection to Defendant’s Discovery Requests and/or Motion to Stay Pending the Hearing Scheduled for February 8, 2008. A hearing on Plaintiff’s Motion was scheduled for February 7, 2008.
13. On February 7, 2008 a hearing was held on Plaintiff’s Objections at which time this Court entered sanctions against Defendant in the amount of $600.00 to be paid on or before March 27, 2007. (Defendant did comply with this Order1.)
14. On February 8, 2008 a hearing was held on Plaintiff’s Motion to Compel Compliance with Court Order and Renewed Motion for Entry of Default at which time this Court found that Defendant’s Discovery responses were insufficient and imposed additional sanctions against the Defendant in the amount of $600.00 for its failure to comply with same. Defendant failed to comply with this Order.
15. On March 3, 2008 Plaintiff filed a Motion to Compel Better Answers to Interrogatories and Motion to Determine Sufficiency of Defendant’s Responses to Plaintiff’s Request For Admissions. On March 6, 2008 Plaintiff filed a Motion to Deem Privilege Objections Waived. A Hearing was scheduled for April 28, 2008.
16. On April 7, 2008 Plaintiff filed its Motion [Second] Motion to Compel Compliance with Court Order and Motion for Sanctions. A hearing was scheduled for June 27, 2008.
17. On April 28, 2008 a hearing was held on Plaintiff’s Motion to Determine Sufficiency of Defendant’s Responses to Request for Admissions, Plaintiff’s Motion to Deem Privilege Objections Waived and Motion to Compel Better Interrogatory Responses and for Sanctions. At which time the Court Ordered Defendant to provide Amended Responses to Plaintiff’s Request for Admissions, Ordered Defendant to produce a privilege log, Ordered Defendant to provide Better Answers to Interrogatories numbered 5, 6, 7, 8, 9, 11 and 14, and Ordered Defendant to pay sanctions in the amount of $700.00 within twenty (20) days2.
Defendant failed to comply.
18. On June 2, 2008 Plaintiff filed its Third Motion to Compel Compliance with Court Orders and Second Renewed Motion for Entry of Default. A Hearing was scheduled for August 1, 2008.
19. On June 27, 2008 a hearing was held on Plaintiff’s Third Motion to Compel at which time this Court imposed monetary sanctions for the fifth (5th) time.
20. On February 23, 2009 Plaintiff filed its Motion to Strike Pleadings and Enter Judgment in Favor of the Plaintiff for Defendant’s continued failure to comply with the Rules of Civil Procedure as well as its failure to comply with this Court Orders.
21. On May 8, 2009 a hearing was held on Plaintiff’s Motion at which time Defendant served Plaintiff with Defendant’s Bench Brief In Opposition to Plaintiff’s Motion to Strike Defendant’s Pleadings & For Sanctions. Defendant’s response claims that all of the issues raised in Plaintiff’s Motion were handled by “outside defense firm, Cruanes & Perez”.
22. Defendant’s response further states that “Plaintiff’s Motion to Strike is only a thinly veiled attempt to garner additional fees before the end of this litigation AND before settlement of the same which has been proposed by this undersigned since receipt of same.” Plaintiff’s Motion was filed on or about February 23, 2009. Between February 23, 2009 and the date of this hearing, this Court has yet to receive a Motion for Substitution of Counsel, and/or a Notice of a Appearance. As of this date, the first and only filing from the Office of the General Counsel is this response. Again, Defendant has failed to comply with the Rules of Civil Procedure. More importantly, Defendant made to attempt to provide sufficient responses to the Plaintiff’s discovery before the hearing.
CONCLUSIONS OF LAW:
The appropriate analysis for determining whether to enter a default judgment as a sanction is set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994). This case dealt with a dismissal with prejudice as a sanction, and the effect of a default judgment is the same: either action disposes of the case. The Florida Supreme Court in Kozel sets forth principals and guidelines for determining whether such a sanction is appropriate. One principle is whether the purpose of the Florida Rules of Civil Procedure is being upheld, i.e., “to encourage the orderly movement of litigation.” Another principle is that the client should not generally be punished for the unilateral action of its attorney. Additionally, the analyzing court should consider whether “a sanction less severe than dismissal appears to be a viable alternative.” Id., at818. 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;
Administration a reasonable time period for this case would be eighteen (18) months from filing to conclusion. This case was filed on or about March 22, 2007. Over twenty-six (26) months have elapsed and the initial discovery process has not even been completed. Moreover, this Court has spent an inordinate amount of time in hearings regarding numerous discovery violations in this case.
In conclusion, this Court sees no viable alternative sanction in this particular case. As of the date of this Order, Defendant has still not appropriately complied with the Rules of Civil Procedure or Plaintiff’s discovery requests.
It is therefore,
ORDERED AND ADJUDGED that Plaintiff’s Motion be, a Default is hereby entered against the Defendant and in favor of the Plaintiff. Damages in this case are liquidated, and Plaintiff is directed to submit a proposed default judgment entering judgment for the amount prayed for in the complaint and declaring that Plaintiff is the prevailing party entitled to attorney’s fees and costs pursuant to F.S. §627.428, for which this Court shall reserve jurisdiction.
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1Defendant’s failure to timely and or properly respond to discovery was addressed at this hearing and counsel for Defendant was advised to return to the hearing on the 8th with proper discovery responses.
2The Court subsequently signed the Orders on May 15, 2008 and at that time extended the time for Defendant’s compliance to May 30, 2008. Notwithstanding the additional time afforded by the Court, Defendant failed to comply within the time period specified in all three of this Court’s Orders.
