23 Fla. L. Weekly Supp. 876a
Online Reference: FLWSUPP 2308CRODInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer’s failure to comply with multiple orders requiring production of geozip information was willful, deliberate and contumacious, information contained in geozips is taken to be established, and court will find medical provider’s charge to be within range of reasonableness if geozip report contains even one charge at or above provider’s charge
HEALTH DIAGNOSTICS OF MIAMI, LLC, d/b/a STAND-UP MRI OF MIAMI, a/a/o Celina Rodriguez, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO13-009951(70). January 8, 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 MOTION TO STRIKESTATE FARM’S PLEADINGS FOR WILLFULNONCOMPLIANCE WITH COURT ORDER
THIS CAUSE having come to be considered on October 29, 2015 on Plaintiff’s 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 — 142 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 29, 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 ordered1 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 21, 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. Defendant did not to produce the court-ordered information until the hearing on Plaintiff’s Motion to Strike Pleadings for Willful Noncompliance with Court Order.
12. At the hearing, 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.
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 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. Based upon the facts and circumstances of this specific case and a review of the Kozel factors, the Court is giving State Farm one final opportunity to comply and will not strike Defendant’s pleadings at this time. Instead this Court looks to the other available Florida Rules of Civil Procedure for a lesser remedy.
6. 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.
7. 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.
8. 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.
9. 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.
10. In this case, the Court utilizes Rule 1.380(b)(2)(A) and (b)(2)(B) and finds that the information that State Farm was obligated to produce is relevant and admissible and if produced as ordered would have supported Plaintiff’s position and negated Defendant’s position regarding the reasonableness of Plaintiff’s charge. Utilizing subsection (A) and (B), this Court finds that the information contained in the geozip is taken to be established for purposes of this action and State Farm is not allowed to oppose any of the information contained within the geozip. If the geozip report contains even one charge that is at or above the Plaintiff’s charge, the Court will make a finding that Plaintiff’s charge is within the range of reasonableness for the date, CPT code, and location encompassed in the geozip.
11. The Court also awards attorneys’ fees and costs, and reserves ruling on the amount of fees and costs to be awarded to the Plaintiff.
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1The written order was executed on July 15, 2015 in the case of Health Diagnostics of Fort Lauderdale, LLC, d/b/a Stand-up MRI of Fort Lauderdale (a/a/o Daniel Waserman) v. State Farm Mutual Auto. Ins. Co., Case No. CONO12-010893(70) [23 Fla. L. Weekly Supp. 187a], but clearly, and by agreement of the parties, applied “to all other matters currently being litigated against State Farm by Plaintiff’s counsel and defended by the Kirwan, Spellacy, & Danner firm.”
