23 Fla. L. Weekly Supp. 864a
Online Reference: FLWSUPP 2308DELGInsurance — 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 ORLANDO, LLC, d/b/a STAND-UP MRI OF ORLANDO, a/a/o Alejandra Delgado, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO12-009394(70). January 25, 2016. Honorable John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Matt Hellman, P.A., Plantation, for Defendant.
ORDER ON COURT’S SUA SPONTE EVIDENTIARYHEARING REGARDING STATE FARM’S CONTINUINGFAILURE TO COMPLY WITH THIS COURT’S ORDERS
THIS CAUSE having come to be considered on October 26, 2015 on Court’s Sua Sponte Order Setting Evidentiary Hearing, 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 April 10, 2015 — 199 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 March 04, 2015, the Defendant had 20 days (i.e., until March 24, 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. On July 17, 2015, this Court entered an order requiring the Defendant to produce the geozip information within 30 days. Defendant failed to comply.
5. On September 10, 2015, Plaintiff made an additional request, in its notice of taking deposition duces tecum, that the “geozip” information be provided at deposition, which was scheduled to occur on September 25, 2015. Defendant appeared without the documents.
6. On September 25, 2015, the Court entered an additional order requiring State Farm to produce the geozip information no later than October 05, 2015. Defendant failed to comply.
7. Defendant ultimately produced the court-ordered information on October 06, 2015 at 12:24 P.M. — three hours prior to the hearing on Plaintiff’s motion for summary disposition. The purported geozip was incomplete and noncompliant with this Court’s orders.
8. At the hearing on October 06, 2015, on Plaintiff’s motion for summary judgment and/or summary disposition, the Court postponed the hearing and sua sponte ordered the setting of an evidentiary hearing so State Farm could explain the reasons for its continued violations of the Court’s orders in this case.
9. State Farm was afforded notice and a meaningful opportunity to be heard at the evidentiary hearing, where State Farm produced Mr. Dean Rogers to provide testimony on behalf of State Farm.
10. Mr. Rogers testified that he had no involvement in this case until approximately one week ago. Mr. Rogers also testified that there have been approximately nine different adjusters assigned to this case and that there was some confusion as to when the first order requiring the geozip information was entered.
11. Nevertheless, Mr. Rogers acknowledged that State Farm had violated this Court’s orders.
12. Additionally, on September 25, 2015, Plaintiff took the deposition of Mr. Yacorps sitting as State Farm’s 1.310(b)(6) corporate designee. Plaintiff’s counsel plainly asked the witness about why State Farm violated the Court’s order. As he testified under oath:
When the order was actually sent to me I requested the report as according to the court order. Unfortunately, there are thousands upon thousands from different attorneys, different plaintiffs’ attorneys, such as yourself, who are requesting Geozip requests. Unfortunately, it takes time. At this time, we’re not saying we’re not producing it, it’s taking the time. There’s an abundant — I mean, a vast amount of requests, so that’s why the delay. (Deposition Transcript of Steve Yacorps, 9/25/15)
13. When Mr. Weinstein, plaintiffs’ counsel, pressed Mr. Yacorps regarding State Farm’s defiance of this Court’s Order to produce the Geozips within 30 days, his answer was “It just takes time” (Deposition Transcript of Steve Yacorps, 9/25/15, p. 9). As he continued, “There are thousands — I mean, hundreds of these requests out there at this particular time.” Id.
14. A bit later, counsel asked Mr. Yacorps whether he had ever been ordered to produce Geozip information before, to which he testified that yes, he had (Deposition Transcript of Steve Yacorps, 9/25/15, p. 14). Mr. Yacorps noted that he has produced Geozip information either less or more than ten times, but he could testify that he has gotten “at least five requests per week on average. . .” (Deposition Transcript of Steve Yacorps, 9/25/15, p. 14).
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, the testimony of Mr. Rogers, the testimony of Mr. Yacorps, and a review of the Kozel factors, the Court is not willing to strike Defendant’s pleadings at this time and instead looks to the 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.
