19 Fla. L. Weekly Supp. 847b
Online Reference: FLWSUPP 1910MOISInsurance — Discovery — Failure to comply — Sanctions — Trial court denies motion for reconsideration of order striking insurer’s witnesses and pleadings where insurer violated numerous orders to provide discoverable impeachment evidence relating to its witnesses as well as order requiring filing of pretrial stipulation — Claim that medical provider’s pleadings are nullity because provider’s co-counsel never filed notice of appearance is refuted by docket — Final judgment entered
A-1 OPEN MRI INC. A/A/O TITO MOISE, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 06-10788 COCE 54. May 10, 2012. Honorable Gary R. Cowart, Judge. Counsel: Andrea Jakob, Lubell and Rosen, LLC, Ft. Lauderdale; and Emilio Stillo, for Plaintiff. Pablo Arrue, Office of General Counsel, for Defendant.
AMENDED FINAL JUDGMENT INFAVOR OF THE PLAINTIFF
The Court has reviewed the Docket, the transcripts of prior hearings and having been advised in the premises regarding Plaintiff’s Motion for Reconsideration of Plaintiff’s Motion for Partial Summary Judgment regarding “RRN” and on Defendant’s Motion for Reconsideration of Order entered on April 12, 2012 striking the doctor, the pleadings and for sanctions and all defense witnesses,
IT IS ORDERED and ADJUDGED that:
Plaintiff’s Motion is Granted. As the only issue remaining in this case was whether the medical treatment was related and necessary for the treatment of injuries sustained in the November 8, 2003 automobile accident; there are no remaining issues in this case and final Judgment for the Plaintiff is Granted. The Defendant did not proffer at the Motion for Reconsideration to contest related and necessity.
Defendant’s Motion is Denied. This Court has reviewed the Docket, the transcript of the April 12, 2012 hearing and Defendant’s Emergency Motion for Reconsideration. Defendant’s Motion for Reconsideration put forth in part the following in support of its Motion:
Defendant asserted that the sole reason the defense witnesses were stricken was the failure to timely file its pretrial stipulation. According to the transcript of the April 12, 2012 hearing, the witnesses were stricken due to Defendant’s contumacious disregard of at least five previous court orders, including the Pretrial Stipulation which was only filed as a “proposed” stipulation and was filed past the deadline provided for in the Order Setting Pretrial Guidelines.
The Defendant also violated numerous Orders as it relates to providing responses to allow the Plaintiff to establish bias of Defendant’s Expert Witness. The Defendant violated Court Orders of August 18, 2011, February 14, 2012 and February 27, 2012 as it relates to providing discoverable impeachment evidence. Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999) [24 Fla. L. Weekly S187a]. In the Order of Plaintiff’s Motion to Enforce Court Order of August 18, 2011 and for Sanctions dated February 27, 2012, the Court found Plaintiff was entitled to attorneys for which the Court reserved as amount. As of the date of hearing on Plaintiff’s motion to Strike Pleadings and/or Expert Witnesses the Defendant still had not complied. The trial was less than two weeks away and the Plaintiff was prejudiced by the noncompliance and monetary sanctions were not sufficient in effectuating the Defendant’s compliance.
Defendant also asserted that Plaintiff’s co-counsel, Emilio Stillo, Esq. had never filed a Notice of Appearance as the Defendant argues for reconsideration that attorney Stillo’s pleadings are a nullity. The Plaintiff has filed a Motion for Fraud Upon the Court as it relates to these allegations.1 Plaintiff’s Motion attaches a copy of the docket which indicates a Notice of Co-Counsel had been filed on June 23, 2011 date along with a Notice of change of address for Mr. Stillo on March 7, 2012.
Wherefore:
1. Judgment against the Defendant and in favor of the Plaintiff is granted in the amount of $1,096.34 total principal:
(1,370.42 at 80% (1,370.42 X 80% = 1,096.34))
2. Pre-judgment interest totaling $554.02 dollars for a total amount of $1650.362
The total amount of the Judgment is One Thousand, Six Hundred Fifty dollars and 36/xx ($1,650.36)) for which let execution issue.
The Court determines that Plaintiff is the prevailing party and is entitled to an award of attorney’s fees and costs. The Court reserves jurisdiction for the determination of reasonable attorney’s fees, costs and interest and award of same.
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1The Court has not ruled on Plaintiff’s Motion and same is moot due to entry of the Final Judgment.
2See attached Interest Appendix [Editor’s Note: Appendix Omitted]
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