23 Fla. L. Weekly Supp. 485a
Online Reference: FLWSUPP 2305SAVAInsurance — Discovery — Sanctions — Where insurer did not respond to overtures from medical provider advising that insurer’s discovery responses were deficient and seeking opportunity to resolve and narrow discovery issues, monetary sanctions are imposed on insurer for actions that were willful and in bad faith
PREMIER DIAGNOSTIC CENTERS, LLC (a/a/o Nicole Sava), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-4275 COCE 53. August 10, 2015. Robert W. Lee, Judge. Counsel: Joseph R. Dawson, Fort Lauderdale, for Plaintiff. Michael A. Graham, Fort Lauderdale, for Defendant.
ORDER ON COURT’S ORDER TO SHOW CAUSE
THIS CAUSE came before the Court on August 7, 2015 for hearing of the Court’s Order to Show Cause on defense counsel Michael Graham, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; and having been sufficiently advised in the premises, the Court finds as follows:
1. Plaintiff propounded Interrogatories and Requests for Admission on March 14, 2014.
2. Defendant responded to the discovery, but raised objections. The Plaintiff reviewed the Defendant’s responses, but found them deficient.
3. As a result, the Plaintiff, by letter, telephone, and motions, advised Defendant that Plaintiff believed Defendant’s responses were deficient and sought an opportunity to discuss them.
4. Defense counsel failed to respond in any manner to any of Plaintiff’s overtures to resolve or narrow the issues.
5. As a result, the Court issued its Order to Show Cause on July 20, 2015, ordering defense counsel to appear on July 31, 2015 and explain why sanctions should not be imposed for failing to address discovery issues in good faith and in accordance with counsel’s obligations under the rules, as well as its professional and ethical obligations.
6. At defense counsel’s request, the hearing was rescheduled to August 7, 2015. At the hearing, defense counsel acknowledged that he had failed to respond to any of the overtures to resolve or narrow the issues because he believed all his responses were adequate,1 and as a result, he saw no reason to communicate — not even to make a courtesy phone call or send an email that he believed all his responses were sound and could not be resolved or further narrowed. In his view, Plaintiff’s counsel should have simply set his discovery motions and Defendant’s objections for hearing on the Court’s order and let the matters proceed in due course.
7. Defense counsel treats the Court’s time in quite a cavalier manner. Discovery motions and objections, particularly those which repeatedly bring the same issues before the Court, take a substantial amount of this Court’s limited hearing time. The Court’s experience with these hearings has demonstrated that few attorneys make any bona fide effort prior to setting the matter for hearing to actually resolve the disputed matters. Additionally, these matters are generally subsequently substantially resolved after the hearing is set, but before the hearing goes forward
8. Defense counsel is also woefully lacking in his understanding of the rules and his professional obligations concerning discovery. Pursuant to Local Rule 11, ¶3, prior to (as opposed to, “at the same time as” or “after”) setting a matter for hearing, the attorney “noticing the motion for hearing shall attempt to resolve the matter and shall certify the good faith attempt to resolve” (emphasis added). This Local Rule would have little meaning if a party could merely disregard any outreach by its opposing counsel.
9. Similarly, Rule 1.380(a)(2), Fla. R. Civ. P., provides that the “motion must include a certification that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information without court action.”
10. Further, Florida Bar Guideline for Professional Conduct H(1) provides that “[b]efore setting a motion for hearing, counsel should make a reasonable effort to resolve the issue” (emphasis added).
11. Indeed, as a result of the above, the Court will no longer permit a party to set discovery matters for hearing until the party seeking the hearing specifically certifies that he or she has made a bona fide effort to resolve these matters prior to requesting that the matter be set for hearing.
12. Here, Plaintiff’s counsel moved forward properly. He tried to do what he is required to do. Defense counsel did not bother to even respond, knowing full well that Plaintiff’s counsel was anticipating a response.
13. As a result, this Court finds defense counsel’s actions to be willful and in bad faith. The Court further finds that Plaintiff is entitled to sanctions as a result of defense counsel’s misconduct. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s counsel is sanctioned for two hours of time expended by Plaintiff in an attempt to comply, at the sanction rate of $350.00 per hour, for a total of $700.00. This sum shall be paid directly to Plaintiff’s counsel no later than ten (10) days from the date of this Order.
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1Notwithstanding defense counsel’s asserted belief that its discovery responses were adequate, this Court’s Order to Show Cause triggered the Defendant to review its responses and to submit a revised Response to Plaintiff’s Request for Admissions.
