22 Fla. L. Weekly Supp. 843a

Online Reference: FLWSUPP 2207ROMAInsurance — Personal injury protection — Discovery — Failure to comply — Contempt — Sanctions — Where insurer demonstrated gross negligence in disregarding three discovery orders, law firm has been previously sanctioned for violation of court orders, one-year delay in discovery has prejudiced medical provider, there is no reasonable credible justification for failure to comply with orders, and delay created significant problems of judicial administration, all defenses in insurer’s answer are stricken, insurer is precluded from presenting any evidence in support of material misrepresentation defense that was subject of discovery requests, and monetary sanctions are imposed

TAMPA FAMILY CHIROPRACTIC a/a/o Stephanie Roman, Plaintiff, vs. WINDHAVEN INSURANCE COMPANY, Defendant.County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 12-CC-24390, Division M. April 2, 2014. Honorable Herbert M. Berkowitz, Judge. Counsel: Emilio R. Stillo, Joseph Ron Pliego II, and Andrea L. Jakob, for Plaintiff. Daniel Smith, for Defendant.

ORDER ON PLAINTIFF’S MOTION TO STRIKEPLEADINGS, STRIKE WITNESSES AND DEFENSESAND FOR SANCTIONS FOR VIOLATIONS OFCOURT ORDERS OF OCTOBER 17, 2013,OCTOBER 22, 2013 AND DECEMBER 2, 2013

THIS CAUSE came before the Court on February 12, 2014 on Plaintiff’s Motion to Strike Pleadings, Strike Witnesses and Defenses and for Sanctions for Violations of Court Orders of October 17, 2013, October 22, 2013 and December 2, 2013¹; counsel for both parties being present in court, and having full opportunity to be heard, and the Court having reviewed the entire court file, reviewed the relevant legal authorities and having been sufficiently advised in the premises, finds as follows:

BACKGROUND

1. Stephanie Roman was allegedly involved in an automobile accident in Florida, in which she allegedly sustained personal injuries, and received medical services rendered by the Plaintiff. The Defendant made no payment prior to suit.

2. Plaintiff filed its Complaint for unpaid Personal Injury Protection benefits against Defendant on or about September 11, 2012 and served Defendant with initial Interrogatories, Request for Production and Request for Admissions on November 19, 2012. Defendant filed its Answer and Affirmative Defenses on November 19, 2012.

3. Plaintiff served upon Defendant its Material Misrepresentation Request for Production on August 14, 2013. Defendant failed to respond to Plaintiff’s Material Misrepresentation Request for Production dated August 14, 2013 and did not make any attempt to contact Plaintiff regarding the failure to respond.

4. An Order was signed on October 17, 2013 giving Defendant 10 days in which to respond to the Material Misrepresentation Request for Production, ordering that any failure to abide by this Order will result in sanctions against Defendant. Defendant failed to comply with the October 17, 2013 Court Order.

5. Plaintiff served upon Defendant Material Misrepresentation Interrogatories on August 15, 2013, to which Defendant failed to timely respond.

6. A second Order Compelling Responses to Material Misrepresentation Interrogatories was signed on October 22, 2013 giving Defendant 10 days in which to respond and ordering that any failure to abide by the Order will result in sanctions against Defendant.

7. Defendant failed to comply with the October 22, 2013 Court Order.

8. Plaintiff filed its Second Motion to Compel Answers to Material Misrepresentation Interrogatories dated August 15, 2013 and an Order was signed on December 2, 2013 compelling Defendant to respond to discovery within 5 days.

9. Defendant failed to respond to the December 2, 2013 Court Order. Defendant filed a Notice of Answers to Interrogatories, but not until February 4, 2014, some eight days prior to this Hearing, and which contained objections to a number of these interrogatories.

10. At this present hearing, Defendant presented no compelling contrary evidence or legal authority in opposition to this motion for sanctions. The only legal authority cited by Defendant was a Hillsborough County Case of June Showalter v. Sterling and King, Inc., 20 Fla. L. Weekly Supp. 813b (13th Jud Cir. County Court, 2011), which was distinguished by the Court. Defendant also argued that the motion should be denied because current counsel was newly assigned to this file by the law firm representing the Defendant and that his predecessor, Nadine Gabay-Babyack, Esq. had been responsible for the defense of this case. Counsel explained that there was internal confusion as to which of defense counsel’s offices was responsible for the handling of this case, but could not explain why Court Orders were repeatedly ignored.

11. Subsequent to the Hearing of February 12, 2014 but prior to entry of this Order, Plaintiff filed Supplemental Authority showing five previous instances in which sanctions have been awarded against the same defense counsel firm for failure to respond to previous Court Orders. Injury Treatment Center of Fort Myers, Inc. d/b/a Choice Medical Centers a/a/o Brenda Martinez v. Windhaven Insurance Company, 11-10670 COCE 54 (17th Judicial Cir., County Court, 2012); Hands on Healthcare, LLC dba Baer Chiropractic a/a/o Robert Thomas v. Windhaven Insurance Company, 11-26643 COCE 53 (17th Judicial Cir., County Court, 2013) Injury Treatment Center of Coral Springs, Inc. d/b/a Choice Medical Centers a/a/o Fleurinord Ducanord v. Equity Insurance Company, 11-07557 COCE 54 (17th Judicial Cir., County Court, 2012); Southeast MRI, LLC. d/b/a Choice Medical Centers a/a/o Stacey Debord v. Equity Insurance Company, 11-10516 COCE 54 (17th Judicial Cir., County Court, 2012); Injury Treatment Center of Coral Springs, Inc. d/b/a Choice Medical Centers a/a/o Marie Virgile v. Equity Insurance Company, 11-10513 COCE 54 (17th Judicial Cir., County Court, 2012).ANALYSIS

The Court specifically finds that the Defendant in this case is in contempt and in violation of these Court Orders. The appropriate analysis for determining whether to enter a default judgment as a sanction is, in this Court’s view, set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994). The Florida Supreme Court has set forth principles and guidelines for addressing whether and when a default judgment is an appropriate sanction.

The analyzing Court should consider whether “a sanction less severe than dismissal [or default] appears to be a viable alternative.” Kozel, 629 So.2d at 818. In deciding whether these principles are being upheld, the Supreme Court set forth six guidelines for a trial court to use:

(1) whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;

(2) whether the attorney has been previously sanctioned;

(3) whether the client was personally involved in the act of disobedience;

(4) whether the delay prejudiced the opposing party through undue expense;

(5) whether the attorney offered reasonable justification for noncompliance; and

(6) whether the delay created significant problems of judicial administration.

With regard to the first factor, the Court finds that at a very minimum, gross negligence is involved in the disregard of not one but three Court Orders regarding discovery. It is hard to say whether this behavior rose to the level of being contumacious, as Attorney Gabay-Babyack has never actually appeared on any of the myriad matters in which she was counsel of record.

With regard to the second factor, the Court does not know whether Ms. Gabay-Babyack, herself, has previously been sanctioned, but the Court is aware of the history of this attorney having been directly involved in similar failures while representing this Defendant, Windhaven Insurance Company. Clearly, those past failures to comply with Court Orders demonstrate that a serious lack of supervision was permitted to continue after the first series of problems were brought to the attention of this Defendant. Further, subsequent to this Hearing but prior to the entry of this Order, the Plaintiff filed a number of Court Orders finding this same law firm in violation of Court Orders with resultant sanctions.

The third factor remains an open question, as the Court cannot say whether the client was actually involved in these acts of disobedience. As the Defendant has been represented by counsel in all of these matters, and since all orders were sent to Defense Counsel, it is unknown to what extent, if any, the client was directing any of these acts of disobedience.

The fourth factor is present in that the delay obviously prejudiced the opposing party. The Plaintiff has been attempting to obtain appropriate discovery for the better part of a year without much, if any, success. Clearly, memories are lost over time, and the expense involved is evident.

As to the fifth factor, the Court finds that there has been and there remains no credible, reasonable justification offered by the Defendant for its continued failure to comply with this Court’s Orders.

In considering the sixth and final factor, i.e., whether the delay created significant problems of judicial administration, a cursory view of the Court’s docket demonstrates the impact this behavior has had on the Court’s time and attentions. It is more than uncommon for this Court to hear motions and sign three separate Orders to compel simple discovery in a PIP case. Because of the Defendant’s failure to respond to discovery and then its failure to obey Orders compelling responses, this Court has been forced to take time away from other matters to repeatedly deal with this problem. Hearing these matters should have been routine, but as a consequence of the Defendant’s repeated failures to respond, the Court has had to revisit the same complaints of misbehavior multiple times, creating a significant impact on problems of judicial administration.

As a consequence, and pursuant to Rule 1.380, the Court finds that the Defendant is in contempt of the discovery rules under 1.380(b). This Court determines that the above described behavior demands imposition of significant sanctions, but that the sanction of entering a Default Judgment is not yet appropriate.

It is therefore ORDERED AND ADJUDGED that the following sanctions are imposed:

1. That all affirmative defenses contained in the Defendant’s Answer are hereby stricken;

2. The Defendant is precluded from presenting any evidence or testimony in support of its claim of material misrepresentation;

3. That the Plaintiff shall be awarded expenses related to bringing all of the motions referred to in this Order, to include attorney’s fees. The Court reserves jurisdiction to determine the amount of such costs (and attorney’s fees) to be awarded, pending an evidentiary hearing to liquidate such costs; and

4. That monetary sanctions for contempt of the Court Orders are awarded to Plaintiff as follows:

a.) Sanctions for contempt for violation of the first Court Order of October 17, 2013 in the amount of $500.00;

b.) Sanctions for contempt for violation of the second Court Order dated October 22, 2013 in the amount of $1,000.00:

c.) Sanctions for contempt for violation of the third Court Order of December 2, 2013 in the amount of $1,500.00;

Said sanctions shall accrue interest at the rate of 4.75 percent pursuant to Florida Statutes and are payable to the Plaintiff’s counsel, in trust for the Plaintiff, within 30 days from the date of this Order. Failure to do so will subject the Defendant to further sanctions including the potential of the striking of the Answer and entering a Default Judgment.

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¹Four related cases were heard, all with similar motions, resulting in separate Orders being entered in each case. Those cases are Tampa Family Chiropractic a/a/o Maribel Aleman v. Windhaven Insurance Company, 12-CC-24394; Tampa Family Chiropractic a/a/o Eduardo Rodriquez v. Windhaven Insurance Company, 12-CC-24388; Tampa Family Chiropractic a/a/o Stephanie Roman v. Windhaven Insurance Company, 12-CC-24390; Tampa Family Chiropractic a/a/o Nancy Manriquez v. Windhaven Insurance Company, 12-24393.

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