20 Fla. L. Weekly Supp. 291a
Online Reference: FLWSUPP 2003ALEMInsurance — Civil procedure — Answer — Failure to serve — Sanctions — Motion for default or sanctions against insurer that served answer to complaint only after provider moved for entry of default, despite being notified by medical provider that answer was overdue and being provided with additional time for compliance — Insurer’s dilatory conduct of failing to serve answer or seek extension of time to serve answer rises to level of bad faith and warrants imposition of sanctions — Motion for default is moot since answer was served prior to entry of default
OPEN MAGNETIC SCANNING, LTD. d/b/a WINDSOR IMAGING, a/a/o Angela Aleman, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-009632 COCE 54. December 6, 2012. Gary Cowart, Judge. Counsel: Marc Finkelstein, Fort Lauderdale, for Plaintiff. Justin Cincola, Miami Gardens, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR DEFAULT ORIN THE ALTERNATIVE MOTION FOR SANCTIONS
THIS CAUSE came before the Court for a hearing on September 20, 2012 upon Plaintiff’s Motion for Default or in the Alternative Motion for Sanctions. During the hearing the Court heard argument of both parties and reviewed legal authority produced by both parties. The Court was satisfied that the Defendant’s behavior rose to the level to the presumption of bad faith, however reserved its final ruling to allow the Defendant 20 days to seek an evidentiary ruling. More than 30 days has elapsed and no request for an evidentiary hearing has been made, as such, the Court makes the following findings of fact:
Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, was served with a copy of the Summons and Complaint on or about June 8, 2012. The parties entered into an agreement to invoke the rules of civil procedure on or about July 3, 2012 and an Order was entered on July 13, 2012. Pursuant to the Order invoking the rules of civil procedure, Defendant was to respond to Plaintiff’s complaint within twenty (20) days from the date of the Order. As such, Defendant’s response was due on or before August 3, 2012.
Defendant failed to serve a response to the Complaint. Plaintiff notified the Defendant, by way of written correspondence dated August 8, 2012, Defendant’s response had not been received and was thus overdue. Defendant failed to respond.
Plaintiff served its Motion for Default or in the alternative motion for sanctions and notice of hearing on August 22, 2012. Defendant untimely served its Answer and Affirmative Defenses on or about August 24, 2012, only after Plaintiff moved for an entry of default.
Conclusions
In this case, Defendant requested the Plaintiff agree to the entry of a joint pretrial stipulation invoking the rules of civil procedure. Plaintiff agreed. Plaintiff relied upon the stipulation proposed by the Defendant. However, when Defendant failed to comply with the stipulation and Order, Plaintiff notified Defendant of its noncompliance and provided the Defendant an additional 10 days to respond to the Plaintiff’s complaint. Defendant made no attempt to contact the Plaintiff before or after its response was overdue. During the hearing, Defendant was unable to provide any reasonable justification for its failure to comply with the Court’s July 13, 2012 order.
The stipulation entered by counsel for Defendant is nothing more than an appearance on behalf of the Defendant. In Picchi v. Barnett Bank of South Florida, N.A. 521 So.2d 1090 (FLA 1988) the Court found that the practice that Defendant is utilizing so as to avoid a clerk’s default is nothing more than a “delaying tactic with no legitimate purpose.” The Florida Supreme Court further stated in Picchi that the filing of a non-responsive “paper” to furnish record activity and avoid the provisions of Rule 1.500(a) and (b) is an abuse of process. This case is similar to Picchi in that Defendant’s non-responsive “papers” which prevent the Clerk from entering a default, amounts to nothing more than an unreasonable and unnecessary delay.
Defendant served its answer prior to the entry of a default. Rule 1.500(b) and (c), Florida Rules of Procedure, provide that the Court may enter a default only where the defendant “has failed to plead or otherwise defend,” and “[a]party may plead or otherwise defend at any time before default is entered.” Thus, the entry of a default is improper.
However, in this case, Defendant not only violated the civil procedure rules, it also violated this Court’s order requiring Defendant to serve its response within 20 days. Defendant acknowledged receiving the Court’s order however claimed it could not timely respond due to Defendant’s caseload. Defendant made no attempt to secure an order extending the time for which it agreed to serve its response. Furthermore, Defendant acknowledged receipt of Plaintiff’s August 8th correspondence, however, noted that the letter was sent to a different attorney. When asked if that attorney worked in the same building, counsel advised “yes, but his office is 2 hallways away”.
This Court finds Defendant’s dilatory conduct rises to the level of bad faith and therefore sanctions is proper. “Civil rule precluding entry of default where answer is filed before default is entered, even though answer may have been untimely, did not preclude imposition of sanctions other than default for dilatory conduct” Haitian Community Flamingo Auto Parts Corp. v. Landmark First National Bank of Ft. Lauderdale, 501 So.2d 170 (Fla. 4th DCA 1987).
At the hearing, Plaintiff’s counsel requested $637.50 in sanctions representing 1.5 hours in legal fees. The Court notes that the hearing on this matter alone took well over an hour.
Accordingly, Plaintiff’s counsel’s request is certainly reasonable.
It is therefore ordered and adjudged as follows:
1. Plaintiff’s motion for default is moot as Defendant filed its answer.
2. Plaintiff’s motion for sanctions is granted. Defendant shall pay $637.50 in sanctions representing 1.5 hours. Said payment shall be made within 10 days from the date of this order.
* * *
