20 Fla. L. Weekly Supp. 445a
Online Reference: FLWSUPP 2004PACHInsurance — Personal injury protection — Coverage — Medical expenses — Dismissal — Provider’s action against insurer dismissed where plaintiff willfully and deliberately failed to comply with court order requiring plaintiff to file bills at issue within 15-days of date of order and still had not filed bills as of date of hearing on motion to dismiss
CALEB HEALTH CARE, INC., a/a/o Jorge Pacheco, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 11-CC-002074, Division J. December 19, 2012. Honorable Gaston J. Fernandez, Judge. Counsel: Stuart B. Yanofsky, Law Offices of Stuart B. Yanofsky, P.A., Plantation, for Plaintiff. Chad C. Guzzo, Masten, Peterson & Denbo, LLC, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR ORDERTO SHOW CAUSE AND/OR MOTION FOR SANCTIONSAND/OR RENEWED MOTION TO DISMISS
THIS CAUSE having come for consideration upon Defendant’s Motion for Order to Show Cause and/or Motion for Sanctions and/or Renewed Motion to Dismiss, and the Court having heard argument and being fully advised makes the following findings:
BACKGROUND
1. On January 19, 2011, Plaintiff, Caleb Health Care, Inc., as assignee of Jorge Pacheco, filed a one count complaint against Defendant, Allstate Indemnity Company (“Allstate”), seeking payment of allegedly overdue Personal Injury Protection (“PIP”) benefits.
2. On March 3, 2011, Allstate filed its Motion to Dismiss Complaint, or in the Alternate, Motion for Statement of Particulars based upon the vagueness of Plaintiff’s Complaint and Plaintiff’s failure to identify or attach the bills at-issue.
3. On February 21, 2012, this Court entered an Agreed Order on Allstate’s Motion to Dismiss Complaint, or in the Alternate, Motion for Statement of Particulars (“Order”). Within said Order, Plaintiff was required to file the bills at issue within fifteen (15) days of the date of the Order; however, Plaintiff failed to file same.
4. On October 9, 2012, Allstate filed the subject Motion for Order to Show Cause and/or Motion for Sanctions and/or Renewed Motion to Dismiss (“Motion”).
5. On December 4, 2012, this Court conducted a hearing on the Motion with Plaintiff’s counsel present telephonically and Allstate’s counsel present in-person. In the hearing, Allstate alleged that: (1) Plaintiff willfully and deliberately did not comply with this Court’s February 21, 2012 Order as Plaintiff had not filed the bills at issue even after being served with a copy of the subject Motion; (2) Allstate was especially prejudiced in that it incurred fees and costs related to the subject Motion and hearing on same; and (3) this Court was prejudiced as it could not move this litigation along as required by the Florida Rules of Civil Procedure. Plaintiff offered no evidence or argument in opposition of Allstate’s allegations. Instead, Plaintiff alleged that its inaction was technical in nature such that this lawsuit should be allowed to proceed forward on its merits.
FINDINGS
6. Florida Rule of Civil Procedure 1.420(b) states in part:
Involuntary Dismissal. — Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. . . .
Fla. R. Civ. P. 1.420(b).
7. Plaintiff willfully and deliberately did not comply with this Court’s February 21, 2012 Order as Plaintiff failed to file the bills at issue within the required fifteen (15) days of the date of the aforementioned Order. In further support of this finding, as of the date of the hearing on the subject Motion, December 4, 2012, Plaintiff still had not filed the bills at issue.
8. Plaintiff’s inaction prejudiced Allstate as Allstate incurred fees and costs related to the subject Motion and hearing on same.
9. Plaintiff’s inactions inhibited the efficiency of this judiciary as demonstrated by this action being filed almost two (2) years ago and still being at the initial pleading stage.RULING
10. Pursuant to Florida Rule of Civil Procedure 1.420(b), Plaintiff’s Complaint is dismissed.
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