17 Fla. L. Weekly Supp. 657a
Online Reference: FLWSUPP 1708DONInsurance — Automobile — Discovery — Depositions — Where insurer improperly refused to coordinate and set depositions of employees involved in adjustment and denial of claim prior to hearing on insurer’s motion for summary judgment, motion to compel depositions is granted
RONALD DON, Plaintiff, v. ESURANCE INSURANCE COMPANY, a foreign corporation authorized and doing business in the State of Florida, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 48-2009-CA-12186-O. January 26, 2010. Jose R. Rodriguez, Judge. Counsel: Lee M. Jacobson, Law Offices of Michael B. Brehne, P.A., Maitland and Melissa McCullough, Vernis & Bowling of Central Florida, P.A., Deland, for Plaintiff.
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DEPOSITIONS
THIS CAUSE having come before this Court on Plaintiff’s Motion to Compel Depositions, and the Court being otherwise fully advised in the premises, ORDERS AND ADJUDGES as follows:
1. Plaintiff has filed a Declaratory Action seeking a determination as to whether Defendant owes coverage to the Plaintiff under an automobile policy of insurance.
2. Plaintiff sent Interrogatories in which Defendant identified individuals involved in the adjustment and ultimate denial of the claim.
3. Plaintiff sought the depositions of these individuals.
4. Defendant’s counsel, Melissa McCullough refused to coordinate and set these depositions before her client’s Motion for Summary Judgment.
5. Defendant filed a Motion for Summary Judgment with a supporting affidavit of one of those individuals Defendant identified as having knowledge of the adjustment and ultimate denial of the claim.
6. Defendant seeks to set and have its hearing on its Motion for Summary Judgment without affording Plaintiff the opportunity to conclude discovery obviously aimed at the matters asserted in Defendant’s Motion for Summary Judgment.
7. Defendant’s attempt to prevent discovery prior to its Motion for Summary Judgment is improper. See Cullen v. Big Daddy’s Lounges, Inc., 364 So.2d 839, 840 (Fla. 3d DCA 1978) (concluding that summary judgment in favor of defendant prior to plaintiff’s completion of discovery was premature). See also Commercial Bank of Kendall v. Heiman, 322 So.2d 564 (Fla. 3d DCA 1975), (It was premature for the trial court to award the defendant a summary judgment when the plaintiff, through no fault of its own, had not completed its discovery.); Singer v. Star, 510 So.2d 637 (Fla. 4th DCA 1987) (Summary judgment should not be granted until facts have been sufficiently developed to enable court to be reasonably certain that there is no genuine issue of material fact, and summary judgment is premature when there has been insufficient time for discovery, when party through no fault of its own has not yet completed discovery, or when objections to interrogatories and motion to produce are pending.); Williams v. City of Lake City, 62 So.2d 732, (Fla.1953) (All doubts as to existence of material fact must be resolved against party moving for summary judgment).
8. Plaintiff’s Motion to Compel Depositions is hereby GRANTED.
9. Defendant shall provide dates for the deposition of Brad Kilbourne, Donna Lockhart and Brian Hassett within 20 days of today’s date.
10. Said depositions shall occur prior to hearing on Defendant’s Motion for Summary Judgment.
11. Pursuant to Rule 1.380, Plaintiff is entitled to attorney’s fees and costs for having to bring this motion. The Court reserves jurisdiction to determine the amount of attorneys fees at a later date.
