20 Fla. L. Weekly Supp. 730a
Online Reference: FLWSUPP 2007COLOInsurance — Personal injury protection — Exhaustion of benefits — Affidavit filed by insurer in support of motion for summary judgment on affirmative defense of exhaustion of benefits was shown by clear and convincing evidence to be materially false — Plaintiff’s motion to strike defendant’s pleadings for fraud on court is granted — Final judgment to be entered in plaintiff’s favor
ADVANCED DIAGNOSTIC RESOURCES A/A/O OBED COLON, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 2011SC005504XXXNB, Division RH. February 19, 2013. Laura Johnson, Judge. Counsel: Melissa M. Lewis, Gordon & Doner, Palm Beach Gardens, for Plaintiff. Reuven Herssein, Herssein & Herssein, North Miami, for Defendant.
AFFIRMED. 22 Fla. L. Weekly Supp. 64a
ORDER ON PLAINTIFF’S MOTION TO STRIKEDEFENDANT’S PLEADINGS FOR FRAUD ON THE COURT
THIS CAUSE came before the Court on Plaintiff’s Motion to Strike Defendant’s Pleadings for Fraud on the Court and the Court being fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED as follows:
This is a lawsuit for Personal Injury Protection benefits. Defendant has filed the Affirmative Defense of exhaustion of benefits.
On December 28, 2011, Defendant filed a Motion for Summary Judgment based on the exhaustion of benefits defense. Defendant’s Motion for Summary Judgment is supported by an Affidavit filed by Michael Stawski, dated January 16, 2012. On January 16, 2012, Defendant filed a “Notice of Filing Executed Affidavit of Michael Stawski in Support of Defendant’s Motion for Summary Judgment.” (Plaintiff Exhibit A).
Defendant attempted to have the Motion for Summary Judgment heard over the objection of Plaintiff, who had repeatedly attempted to take Mr. Stawski’s deposition. Mr. Stawski was deposed on July 23, 2012. The following false statements have been cited by the Plaintiff:
1. Paragraph 1 of Mr. Stawski’s Affidavit states in part, “I am the Adjuster for United States Automobile Association (“USAA”) on claim number 1782 53 22,” Mr. Stawski testified in the July 23, 2012 deposition that he is not the Adjuster for USAA on claim number 1782 53 22.
2. Paragraph 2 of Mr. Stawski’s Affidavit states, “I have personal knowledge of the matters contained in this affidavit, as well as personal knowledge of this file based upon being the adjuster who actually handled the claim.” Mr. Stawski testified in the July 23, 2012, deposition that he does not have personal knowledge of the claim, and that he was not the adjuster who handled the claim.
3. Paragraph 5 of the Affidiavit states, “Plaintiff alleges in the Complaint that USAA has failed to pay the full amount due for services rendered under a policy of automobile insurance issued by USAA.” Mr. Stawski testified in the July 23, 2012, deposition that he has not read the Plaintiff’s Complaint in this matter, and did not know what a Complaint was.
4. Paragraph 6 of Mr. Stawski’s affidavit states, “An existing contract obligated USAA to provide automobile coverage to Obed Colon. Said contract provided Personal Injury Protection (PIP) coverage up to the statutory minimum of Ten-Thousand Dollars ($10,000). The policy was in effect when the insured was involved in a motor vehicle accident. Please see the certified copy of the Policy and the Policy Declarations Page, attached hereto and incorporated herein as Exhibit “1”.”
Mr. Stawski testified that in deposition that he could not recall if the Affidavit had exhibits attached when he reviewed it. He testified that he had not reviewed the policy prior to preparing for his deposition, and had no personal knowledge of the contents of a USAA automobile policy.
5. Paragraph 8 of the Affidavit states, “Subsequent to the date of loss, November 5, 2009, USAA received bills from the Plaintiff, among other facilities, for medical services rendered to Obed Colon for injuries allegedly sustained in the above referenced automobile accident.”
Mr. Stawski testified in deposition that he had never received any medical bills rendered to Obed Colon, as he was not the adjuster assigned to the claim file.
6. Paragraph 9 of the Affidavit states, “The aforementioned bills were paid in proper order by USAA pursuant to the PIP coverage within Obed Colon’s insurance policy and Florida Statute 627.736. Please see a copy of Obed Colon’s PIP Payout Log, attached hereto and incorporated herein as “Exhibit 2”.”
Mr. Stawski testified in deposition that he had never reviewed the PIP payment log for whether the bills were paid in proper order, as the payment log referenced does not contain information as to when the bills were received, only when they were paid. Mr. Stawski testified that he had no personal knowledge of the payment of any bills in Mr. Colon’s claim.
7. Paragraph 10 of the Affidavit states, “USAA received the Plaintiff’s claims for CPT code 7148 billed on the date of service, December 12, 2009, on January 13, 2010.”
Mr. Stawski testified in deposition that he had never received any bills from Plaintiff, or from any medical provider for Mr. Colon. He also stated that he had not reviewed the file for bills when he responded to the pre-suit demand letter.
8. Paragraph 11 of the Affidavit states, “In response to the Plaintiff’s claims, USAA issued an Explanation of Reimbursement to Plaintiff, advising that additional documentation was needed to support the relatedness and necessity of the MRI.”
Mr. Stawski stated in deposition that he had not reviewed the claim file for Obed Colon prior to his deposition, and had no personal knowledge of the Explanation of Reimbursement.
9. Paragraph 12 of the Affidavit states, “After this information was provided to USAA, they issued an Explanation of Reimbursement to Plaintiff, advising that Plaintiff’s claims were being reimbursed pursuant to Florida Statute 627.736(5)(a), and in accordance with the policy at issue, as well as the PPO contract between the Plaintiff and Three Rivers Providers Network.”
Mr. Stawski testified at deposition that he has no personal knowledge of the Explanation of Reimbursement sent to Plaintiff. He also testified that he has no knowledge of the PPO contract or the Three Rivers Provider Network.
10. Paragraph 13 of the Affidavit states, “USAA continued to make good faith payments to Obed Colon’s medical providers, as Obed Colon continued treatment.”
Mr. Stawski testified at deposition that he had never received the PIP payment log for whether the bills were paid in the proper order, as the payment log referenced does not contain information as to when the bills were received, only when they were paid. Mr. Stawski testified that he had no personal knowledge of the payment of any bills in Mr. Colon’s claim.
11. Paragraph 15 of the Affidavit states, “However, on April 20, 2010, USAA paid a timely submitted claim from one of Obed Colon’s medical providers, Moss Chiropractic Treatmen(sic), which exhausted all PIP benefits available to Obed Colon under the policy of insurance at issue.”
Mr. Stawski testified at deposition that he had never reviewed the PIP payment log for whether the bills were paid in the proper order, as the payment log referenced does not contain information as to when the bills were received, only when they were paid. Mr. Stawski testified that he had no personal knowledge of the payment of any bills in Mr. Colon’s claim.
In the January 12, 2012, Affidavit, Mr. Stawski swore under oath before a Notary Public that he had personal knowledge of the statements contained therein. He also swore that he was “the adjuster” for Obed Colon’s claim. Based upon his later deposition testimony, Mr. Stawski testified that he had no personal knowledge, or in many instances no knowledge at all of information that he swore to be true in his Affidavit. He also testified that he did not review the file at the time he executed the Affidavit.
This Affidavit was filed by Defendant, in support of Defendant’s Motion for Summary Judgment. Without a doubt, it would have been considered by this Court had the Summary Judgment hearing taken place when Defendant set it and insisted that it go forward. Defendant continues the defend this Affidavit in its Response to Plaintiff Motion as a single “subsequent inconsistent statement” and argues that the Affidavit has not been contradicted at all during the pendency of this law suit and that it was supported by the deposition testimony.
A Motion to Strike Pleading for Fraud on the Court is not a proceeding to be filed frivolously or as a litigation tactic, and should be used only on the most egregious occasions. In this case, Defendant contends that the Affidavit, which has been shown to be almost entirely false, should still be considered by this Court because they contend the ultimate issue as set forth by the Affiant (exhaustion of benefits) is true. The Court finds this position to be egregious.
The striking of a party’s pleadings “has long been an available and often favored remedy for a party’s misconduct in the litigation process.” This follows the rationale that “a party who has been guilty of fraud or misconduct in the prosecution of defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends.” Bertrand v. Belhomme, 892 So.2d 1150 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D235f].
The testimony of Mr. Stawskl is clear and convincing evidence that Defendant sentiently set in motion some unconscionable scheme calculated to interfere with this court’s ability to impartially adjudicate this matter, by unfairly hampering the presentation of Plaintiff’s claim, through a materially false Affidavit. See Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D299a].
This Court, like thousands of other courts, relies on affidavits every day, in every kind of case, to adjudicate matters before the Court. Perjury has been found by Florida courts to be the most egregious of conduct by a party to litigation, and dismissal of pleadings against a party that engages in perjury is an appropriate remedy when the perjury permeates the proceedings and relates to the party’s defense. See Babe Elias Builders, Inc. v. Pernick, 765 So.2d 110 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1418a]; See also Papadopoulos v. Cruise Ventures Three Corp., 974 So.2d 418, 420-421 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2230a].
Defendant prepared and submitted and continued to rely on an Affidavit that was shown by clear and convincing evidence to be materially false. Defendant’s actions in this matter are egregious and cannot be tolerated by this Court.
ACCORDINGLY, based on the foregoing, Defendant’s pleadings are stricken, and Final Judgment shall be entered in Plaintiff’s favor. Plaintiff attorney is directed to prepare a proposed Final Judgment. The Court reserves jurisdiction to award fees and costs.
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