21 Fla. L. Weekly Supp. 694b
Online Reference: FLWSUPP 2107AORTInsurance — Discovery — Depositions — Failure to attend — Sanctions — Failure of medical provider’s representative to stay in contact with his attorney does not negate representative’s responsibility to attend deposition
BEST MEDICAL HEALTHCARE SOLUTIONS, LLC., (as assignee of Ana Ortiz), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 2011-CC-003874. March 5, 2014. Honorable Herbert M. Berkowitz, Judge. Counsel: Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., Plantation, for Plaintiff. Jarod L. Gilbert, Andrews & Manno, P.A., Tampa, for Defendant.
AMENDED ORDER ON DEFENDANT’S MOTIONFOR ORDER TO SHOW CAUSE, MOTION FORCONTEMPT AND MOTION FOR SANCTIONS
THIS CAUSE having come before this Court on February 6, 2014 on “Defendant’s Motion for Order to Show Cause, Motion for Contempt and Motion for Sanctions”, and this Court having heard arguments of counsel and being otherwise fully advised, this Court finds the following:
This is a PIP suit involving the above captioned parties. On October 12, 2012, this Court executed an agreed order for final judgment granting Defendant specified amounts in attorneys’ fees and costs. This final judgment was recorded pursuant to Florida law. On April 23, 2013, in an effort to collect its judgment, Defendant served a “Notice of Taking Deposition Duces Tecum In Aid of Execution” pursuant to Fla. R. Civ. P. 1.560(a). This notice required Plaintiff representative Erisman Gonzalez to attend Defendant’s deposition on September 18, 2013. However, Mr. Gonzalez failed to appear for said deposition.
On December 19, 2013, Defendant filed a “Motion for Order to Show Cause, Motion for Contempt and Motion for Sanctions.” In this motion, Defendant requested, inter alia, that Erisman Gonzalez be ordered to show cause why he should not be held in contempt for failing to appear for his scheduled deposition. Defendant also requested reasonable attorneys’ fees and costs incurred in Mr. Gonzalez’ failure to attend the deposition and for litigating this motion. At hearing, Defendant modified its position and requested an Order compelling Plaintiff to submit to a deposition, and requiring Plaintiff to pay the associated fees and costs incurred by Mr. Gonzalez’ failure to attend his deposition pursuant to Fla. R. Civ. P. 1.380(d) which included litigating this motion. In response, Plaintiff’s counsel argued that he has been unable to make contact with Mr. Gonzalez.
Fla. R. Civ. P. 1.380(d) states in pertinent part:
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition after being served with a proper notice, . . . the court in which the action is pending may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. . . Instead of any order or in addition to it, the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. . .
In this case, Plaintiff was properly served through his counsel with a “Notice of Taking Deposition Duces Tecum In Aid of Execution” and Plaintiff failed to appear for same. This Court does not find that Plaintiff’s failure to stay in contact with his attorney is sufficient justification to negate Plaintiff’s responsibility to attend this deposition. Furthermore, this Court finds that an Order compelling Plaintiff to appear for a deposition is appropriate under the facts and circumstances of this case.
Based on the foregoing, it is ORDERED AND ADJUDGED:
1. Defendant’s Motion is Granted In Part and Denied In Part.
2. Plaintiff shall submit to a deposition by a date no later than April 7, 2014.
3. Counsel for Plaintiff and Defendant shall coordinate a mutually convenient date and time for said deposition at least thirty (30) days out from this hearing.
4. Plaintiff shall pay Defendant the reasonable attorneys’ fees and costs incurred in Plaintiff’s failure to appear for the September 18, 2013 deposition, and for obtaining this Order.
5. Jurisdiction will be reserved to determine the amount of reasonable attorneys’ fees and costs incurred by Defendant.
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