23 Fla. L. Weekly Supp. 867a

Online Reference: FLWSUPP 2308WASEInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Striking of pleadings and entry of default is appropriate sanction for insurer’s failure to comply with multiple orders requiring production of geozip information where noncompliance was willful, deliberate and contumacious, insurer’s failure to comply with discovery has become norm in cases and has previously been sanctioned, insurer was personally involved in disobedience and has offered no reasonable justification for noncompliance, and conduct has prejudiced medical provider’s prosecution of case and created significant problem of judicial administration

HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC, d/b/a STAND-UP MRI OF FORT LAUDERDALE, a/a/o Daniel Waserman, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO12-010893(70). January 25, 2016. Honorable John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Kathryn M. Winkler, Kirwan, Spellacy & Danner, Fort Lauderdale, for Defendant.

ORDER ON PLAINTIFF’S RENEWED MOTIONTO STRIKE STATE FARM’S PLEADINGS FOR WILLFULNONCOMPLIANCE WITH COURT ORDER

THIS CAUSE having come to be considered on November 30, 2015 on Plaintiff’s Renewed Motion to Strike State Farm’s Pleadings for Willful Noncompliance with Court Order, and the Court having heard argument from counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon ORDERED AND ADJUDGED as follows:

FINDINGS OF FACT

1. The above-captioned matter arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff.

2. On or about June 09, 2015 — 174 days ago — Plaintiff propounded its second request to produce to Defendant seeking “geozip” information.

3. Pursuant to paragraph 3 of the Court’s Order on Case Management and Imposing Time Limitations, entered on April 10, 2015, the Defendant had 20 days (i.e., until June 29, 2015) to file and serve objections to the Plaintiff’s second request to produce (and notice the objections for hearing). Defendant failed to comply.

4. At a hearing held on July 10, 2015, the Court ordered that Defendant produce the following information prior to Plaintiff’s July 24, 2015 hearing on Plaintiff’s motion for summary disposition:

a. “GeoZips for CPT code(s) at issue in this case for the county where the service was rendered for 60 days before and 60 days after the date(s) of service at issue in this case on or before July 20, 2015” Defendant failed to comply.

b. “[A]ll recommended reimbursements equal to or higher than 80% of the Plaintiff’s total charge that Defendant has previously paid the Plaintiff and other MRI providers (including hospitals) for the county where the services were rendered and for the same CPT code(s) at issue in this case for 60 days before and 60 days after the date(s) of service at issue in this case on or before July 20, 2015.” Defendant failed to comply.

5. Additionally, on July 14, 2015, this Court entered an order on Defendant’s Motion for Protective Order as to Plaintiff’s Request for Deposition and overruled Defendant’s objections to produce the “geozip” information for deposition. Defendant failed to comply.

6. Later on July 14, 2015, Defendant filed its Response to Plaintiff’s Second Request to Produce and, despite the Court’s ruling on this issue, objected to the production of the “geozip” information.

7. Furthermore, on July 14, 2015, Defendant filed its “Emergency Motion for Protective Order Regarding Order Dated July 10, 2015 on Plaintiff’s Discovery Requests to Defendant”.

8. On July 17, 2015, the Court held a hearing on Defendant’s “emergency” motion and treated same as a motion for rehearing. The Court entered an order overruling Defendant’s objections again.

9. On July 22, 2015, Defendant filed its “Better Response to Plaintiff’s Second Request to Produce” and instead of producing the “geozip” information as required by this Court, Defendant responded that “State Farm will produce the Decision Point Litigation Report upon the Plaintiff’s execution of a confidentiality agreement regarding the sensitive data contained in the third party report at issue.” The self-imposed requirement of a confidentiality agreement was not a part of this Court’s Order, was not approved by this Court, and was not a condition precedent to producing the information.

10. State Farm’s noncompliance resulted in the July 24, 2015 hearing on Plaintiff’s motion for summary disposition being continued.

11. On October 09, 2015, Plaintiff filed and served its motion to strike State Farm’s pleadings for willful noncompliance with court order.

12. Defendant made no attempt to produce the court-ordered information until October 27, 2015 — at the hearing on Plaintiff’s Motion to Strike Pleadings for Willful Noncompliance with Court Order.

13. At the hearing on October 27, 2015, State Farm, through its counsel, acknowledged that State Farm had violated this Court’s orders and was unable to offer a reasonable explanation for doing so.

14. Based upon the facts and circumstances of this specific case and a review of the Kozel factors, the Court gave State Farm one final opportunity to comply with the Court’s orders and decided that instead of striking Defendant’s pleadings, the Court would look to the Florida Rules of Civil Procedure to impose a lesser remedy.

15. Once Plaintiff’s counsel had an opportunity to review the contents of the CD produced by Defendant, it became apparent that what was produced was, yet again, not in compliance with this Court’s order. Plaintiff then advised Defendant via email that it intended to bring this noncompliance to the Court’s attention, yet the Defendant still took no action to comply.

16. On October 29, 2015, this Court in the case of Health Diagnostics of Miami, LLC, d/b/a Stand-up MRI of Miami (a/a/o Celina Rodriguez) v. State Farm Mut. Auto. Ins. Co., CONO13-009951(70) [23 Fla. L. Weekly Supp. 615a] put State Farm on notice, through its counsel, that it had until November 10, 2015 to review all pending files in this Court’s division for violated orders compelling production of a “geozip” report and to comply or the Court would consider striking Defendant’s pleadings. This oral pronouncement by the Court was reduced to a written order, which was executed on November 05, 2015.

17. The Court very clearly set the parameters of exactly what was to be produced in its written order, which included among other things the following:

a. The claim number

b. The date of service

c. The CPT code

d. The name of the healthcare provider

e. The address of the healthcare provider

f. The amount of each healthcare providers’ charge for each CPT code

g. The amount of the recommended reimbursement for each CPT code

18. At the Defendant’s request, and over Plaintiff’s strenuous objection, the Court extended the deadline to produce this information until the close of business on November 25, 2015. Defendant failed to comply.

19. On November 13, 2015, Plaintiff filed its renewed motion to strike State Farm’s pleadings for willful noncompliance with Court order.

20. Despite the fact that this issue would be called up for hearing on November 30, 2015, Defendant took no action to comply.

ANALYSIS AND CONCLUSIONS OF LAW

1. The production of geozips and there use in PIP litigation is not a novel concept for this Court or the litigants and has been utilized for years. In fact, the Court was able to locate a case that dates back to 2006 where geozip information was required to be produced. Additionally, this Court has held countless hearings regarding the production of geozips, this Court has reviewed geozips previously produced by State Farm, this Court has reviewed other Courts’ orders requiring the production of geozips, and this Court has ordered State Farm to produce geozips in other cases at least 250 times. To date, this Court is unaware of any appellate court finding that this Court’s ruling or the various rulings from other Courts were improper.

2. In this case, the Court begins its analysis by pointing out that Defendant, through its counsel, concedes to the fact that multiple orders were issued requiring the production of geozip information, that the Defendant received those orders, and that Defendant failed to comply with each and every one of them.

3. If the Defendant disagreed with any of the Court’s numerous orders, it had two viable options: (1) comply with the orders; or (2) file an appeal. Choosing to do nothing was not an option.

4. As a result of State Farm’s repeated noncompliance, Plaintiff requested that State Farm’s pleadings be stricken and a default judgment be entered.

5. Rule 1.380(d) of the Florida Rules of Civil Procedure provides, in pertinent part, as follows:

If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) . . . fails (3) to serve a written response to a request for inspection submitted under rule 1.350 after proper service of the request, 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.

6. Rule 1.380(b)(2) of the Florida Rules of Civil Procedure provides as follows:

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 to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders:

(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.

(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.

(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.

(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.

Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order 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.

7. After giving State Farm multiple opportunities to comply, the Court specifically finds that State Farm’s violation of the Court’s orders to produce relevant information was willful, deliberate, and contumacious.

8. When this Court enters an order, it expects that the order will resolve the issue and that the parties will comply, but that was not the case here. The fact that State Farm continued to ignore multiple court orders without good cause certainly warrants the imposition of appropriate sanctions.

9. The Court further finds that State Farm’s bad-faith conduct is so egregious that the remedy of having its pleadings stricken and default judgment entered is appropriate under these facts.

10. In determining whether the sanction of the entry of a default against Defendant is warranted, the Court is mindful of the six-prong test delineated in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994); see also, Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) [30 Fla. L. Weekly S6a] and Mercer v. Raine, 443 So. 2d 944 (Fla. 1983):

a. Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;

b. Whether the attorney has been previously sanctioned;

c. Whether the client was personally involved in the act of disobedience;

d. Whether the delay prejudiced the opposing party through undo expense, loss of evidence or some other fashion;

e. Whether the attorney offered reasonable justification for noncompliance; and

f. Whether the delay created significant problems of judicial administration.

11. The Court finds that the Defendant’s conduct was willful, deliberate, and contumacious rather than an act of neglect or inexperience.

12. This Court is aware of at least 77 cases in its division involving the same Plaintiff and Defendant. Out of those 77 cases, this Court has ordered the production of geozip information in approximately 46 of those cases and State Farm has failed to comply with 42 of those orders.

13. The Court points this out to demonstrate that State Farm’s repeated violations of orders in the case at bar are not just mere isolated incidents, but instead are becoming the norm in this division, which clearly demonstrates State Farm’s willful, deliberate, or contumacious disregard for the Court’s authority and the Rules of Civil Procedure.

14. The Court has previously sanctioned State Farm. In fact, the Court made every effort to use a progressive sanction spectrum to give State Farm every possible opportunity to comply with this Court’s orders.

15. The Court finds that State Farm was personally involved in the act of disobedience in this case.

16. The Court finds that State Farm’s willful failure to abide by this Court’s orders and the Rules of Civil Procedure has prejudiced the Plaintiff in its attempt to obtain discoverable evidence and to prosecute this matter and bring it to a conclusion.

17. The Court finds that Defendant failed to offer a reasonable justification for its repeated noncompliance with Court orders.

18. The Court finds that State Farm’s conduct created a significant problem of judicial administration.

19. Among other things, State Farm’s conduct has resulted in significant delay, the unnecessary use of judicial resources, and has caused the Court to cancel the previously scheduled hearing on Plaintiff’s Motion for Summary Disposition.¹

20. As such, the Court finds that Defendant has clearly engaged in a pattern designed to thwart discovery evincing a continuous pattern of willful, deliberate, and contumacious disregard of the Florida Rules of Civil Procedure and the Court’s several orders concerning its obligation to produce this information. As such, Plaintiff’s motion is granted and State Farm’s pleadings are stricken and default judgment is entered. Plaintiff is directed to submit a final judgment in its favor.

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¹The Court has had to cancel a total of 19 previously scheduled hearings on Plaintiff’s Motion for Summary Disposition because of State Farm’s noncompliance with orders.