20 Fla. L. Weekly Supp. 165b
Online Reference: FLWSUPP 2002SIRKInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer violated order to produce for deposition an adjuster with personal knowledge of how amount paid was actually determined by producing witness with no personal knowledge of methodology used by insurer to determine amount paid, insurer is precluded from telling jury the amount it paid and is ordered to pay fees and costs associated with deposition
PALMS MRI DIAGNOSTIC IMAGING CENTERS, INC, as assignee of Frank Sirker, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-14717 CONO 72. October 30, 2012. John D. Fry, Judge. Counsel: Cris E. Boyar, for Plaintiff. Adam Reed, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONIN LIMINE AND MOTION FOR SANCTIONS
This cause, having come before the Court, upon the Plaintiff’s Motion in Limine and Motion for Sanctions, and the Court being fully advised in the premises, it is hereby;
ORDERED AND ADJUDGED that:
1. The Plaintiff filed a PIP suit in Small Claims Court because the Defendant failed to pay 80% of the billed amount for one MRI.
2. The Plaintiff filed a Motion to Compel an adjuster with knowledge that made the specific determinations in this case. The hearing took place on 8/20/12 at a coordinated time.
3. During the hearing, counsel for the Plaintiff explained that from past experience of deposing State Farm’s litigation adjusters in other similar cases they have no personal knowledge when asked about the methodology of payment used by State Farm. He explained the adjusters would simply read the information contained on State Farm’s Explanation of Review which does not include any methodology of how the amount that was paid was actually determined.
4. The court granted the Plaintiff’s Motion on 8/20/12 and entered an order that stated “Defendant shall produce the representative with most knowledge as to why the amount that was paid in this case, was paid. The witness must have personal knowledge.”
5. The deposition took place weeks later on October 5, 2012. Prior to this deposition the Defendant did not seek clarification of the order.
6. This deposition was coordinated by the parties in compliance with the Court order. The witness was aware of the Court Order (see pages 16-17 of the deposition transcript).
7. At the deposition the witness was asked repeatedly about what was paid and why that specific amount was paid. The witness testified she had no personal knowledge as to why the amount that was paid in this case was paid other than the information contained on the Explanation of Review which does not have any specific methodology.
8. The witness testified the amount that was paid was reasonable based on the policy and the statute but could not cite to any specifics. The witness had no personal knowledge as to what part of the policy or the statute was relied upon to explain the amount paid in this case.
9. As additional examples,
Page 9:
Q: So the only thing I’m trying to get at is how State Farm came up with the approved amount. Do you have any other information other than what is contained on the Explanation of Review?
A: No.
Page 11
Q: In this particular case, were you aware that the approved amount is exactly 200 percent of medicare?
A: I don’t know
Q: So, I can leave this deposition confident knowing you have no personal knowledge as to how State Farm actually came up with this amount of money?
A: I don’t know.
Q: Do you have any personal knowledge as to how State Farm determined this allowed amount with specificity?
A: No.
Page 14
Q: Who made the determination to pay 200% of Medicare?
A: I don’t know
Page 19
Q: Do you know why State Farm selected this methodology?
A: No.
Page 20
Q: Do you know who at State Farm would have this information?
A: No.
Q: Do you know where I could get this information?
A: No.
Page 23
Q: I want to know what State Farm considered specifically, not the entire PIP statute, not the entire policy of insurance. I want to know specifically what methodology was considered by State Farm in determining how much to pay?
A: I don’t know
The deposition was then suspended by the Plaintiff in order for the court to rule on this matter as well as the manner in which the Defendant was answering the questions.
Conclusions of law: This court finds the Defendant violated a clear Court Order by producing a witness for deposition that has no personal knowledge of the methodology used by State Farm in determining the amount it paid in this matter. The Plaintiff should not be compelled to take numerous depositions to find out this very simple issue on a case filed in Small Claims for $473.
Pursuant to the inherent authority of the court to sanction a party for bad faith conduct and Fla. Rule of Civ. Proc. 1.380(b), the court grants the Plaintiff’s Motion in limine and will preclude the Defendant from telling the jury what it paid in this case at the time of trial. If the Defendant cannot explain how it determined the amount it paid then the Plaintiff would be prevented from effectively cross examining the witness as to the amount it paid. Further, this evidence may not be of any evidentiary value as neither the standard PIP jury instructions nor the verdict form consider the amount paid as an issue in determining whether the charged amount is reasonable, medically necessary or related.
The Court finds the Plaintiff has fundamental right to effectively cross examine the Defendant’s witnesses and this right has been thwarted by the Defendant. Additionally, since the witness with most knowledge does not have this information, it would be inherently unfair for the Defendant to produce a different witness at the time of trial that has this information.
The court further orders the Defendant to pay the reasonable fees and costs associated with taking this deposition and filing the necessary motions to be determined at a later date. If necessary, the Plaintiff may depose this witness again on issues unrelated to the amount paid by the Defendant in this case.
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