23 Fla. L. Weekly Supp. 964b
Online Reference: FLWSUPP 2309HINCInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer has deliberately failed to comply with multiple orders requiring discovery, insurer’s pleadings are stricken and default judgment is entered
XTREME CHIROPRACTIC & REHAB, INC a/a/o OSCAR HINCAPIE, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-1203 COCE (53). February 15, 2016. Honorable Robert W. Lee, Judge. Counsel: Emilio Stillo, Davie, for Plaintiff. Jacob Berger, Plantation, for Defendant.
ORDER STRIKING DEFENDANT’S PLEADINGS ANDENTERING DEFAULT FOR VIOLATIONS OFDISCOVERY RULES AND COURT ORDERS
THIS CAUSE came before the Court on February 15, 2016 for hearing of the Plaintiff’s Motion to Strike Pleadings, etc., and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
1. This matter concerns a claim for assigned personal injury protection (PIP) insurance benefits arising out of an automobile accident.
2. Plaintiff filed the instant lawsuit on or about January 17, 2014.
3. On March 31, 2014, this Court entered an Order Invoking Rules of Civil Procedure.
4. Pursuant to the Court Order of March 31, 2014, Defendant’s response to Plaintiff’s Complaint was due on or about April 25, 2014. Defendant untimely filed its Answer and Affirmative Defenses on April 29, 2014, denying that the treatment in this cause was reasonable, related and medically necessary, and also asserting four (4) affirmative defenses.
5. On or about July 14, 2014, the Plaintiff served its Initial Request for Production on Defendant. The Defendant did not respond as required by the Florida Rules of Civil Procedure. On September 18, 2015, in a good faith effort to obtain the Defendant’s response to Plaintiff’s Initial Request for Production without the necessity of court action, Plaintiff sent correspondence to Defendant advising Defendant that its response to Plaintiff’s Initial Request for Production was overdue, and requesting Defendant’s response prior to Friday, September 25, 2015. Defendant failed to provide its discovery response or even respond to Plaintiff’s Good Faith correspondence. As a result of Defendant’s failure to respond to Plaintiff’s Initial Request for Production, and failure to respond to Plaintiff’s Good Faith correspondence, the Plaintiff filed its Ex Parte Motion to Compel discovery responses on September 25, 2015. On September 28, 2015, this Court entered an Order granting Plaintiff’s Ex-Parte Motion to Compel discovery, and giving Defendant ten (10) days to file its response to Plaintiff’s Initial Request for Production, “failing which sanctions may be imposed.”
6. On or about July 14, 2014, the Plaintiff served its Initial Interrogatories on Defendant. Once again, the Defendant did not respond as required by the Florida Rules of Civil Procedure. On September 18, 2015, in a good faith effort to obtain the Defendant’s response to Plaintiff’s Initial Interrogatories without the necessity of court action, Plaintiff sent correspondence to Defendant advising Defendant that its response to Plaintiff’s Initial Interrogatories was overdue, and requesting Defendant’s response prior to Friday, September 25, 2015. Defendant failed to provide its discovery response or even respond to Plaintiff’s Good Faith correspondence. As a result of Defendant’s failure to respond to Plaintiff’s Initial Interrogatories, and failure to respond to Plaintiff’s Good Faith correspondence, the Plaintiff filed its Ex Parte Motion to Compel discovery responses on September 25, 2015. On September 28, 2015, this Court entered an Order granting Plaintiff’s Ex-Parte Motion to Compel discovery, and giving Defendant ten (10) days to file its response to Plaintiff’s Initial Interrogatories, “failing which sanctions may be imposed.”
7. On or about June 12, 2015, the Plaintiff served its Supplemental Request to Produce for PIP Payout. For a third time, the Defendant did not respond as required by the Florida Rules of Civil Procedure. On September 25, 2015, in a good faith effort to obtain the Defendant’s response to Plaintiff’s Supplemental Request to Produce for PIP Payout without the necessity of court action, Plaintiff sent correspondence to Defendant advising Defendant that its response to Plaintiff’s Supplemental Request to Produce for PIP Payout was overdue, and requesting Defendant’s response prior to Friday, October 2, 2015. Defendant failed to provide its discovery response or even respond to Plaintiff’s Good Faith correspondence. As a result of Defendant’s failure to respond to Plaintiff’s Supplemental Request to Produce for PIP Payout, and failure to respond to Plaintiff’s Good Faith correspondence, the Plaintiff filed its Ex Parte Motion to Compel discovery responses on October 9, 2015. On October 12, 2015, this Court entered an Order granting Plaintiff’s Ex-Parte Motion to Compel discovery, and giving Defendant ten (10) days to file its response to Plaintiff’s Supplemental Request to Produce for PIP Payout, “failing which sanctions may be imposed.”
8. On July 22, 2015, as the case was at issue and more than 18-months old, the Court referred the matter mediation. The case mediated on September 17, 2015, with the parties’ stipulating that the only issue remaining was the reasonableness of the Plaintiff’s charges.
9. As a result, on or about September 18, 2015, the Plaintiff served its Request to Produce with respect to Reasonableness of Charges Defense. For a fourth time, the Defendant did not respond as required by the Florida Rules of Civil Procedure. On October 24, 2015, in a good faith effort to obtain the Defendant’s response to Plaintiff’s Request to Produce with respect to Reasonableness of Charges Defense without the necessity of court action, Plaintiff sent correspondence to Defendant advising Defendant that its response to Plaintiff’s Request to Produce with respect to Reasonableness of Charges Defense was overdue, and requesting Defendant’s response prior to Wednesday, October 28, 2015. Defendant failed to provide its discovery response or even respond to Plaintiff’s Good Faith correspondence. As a result of Defendant’s failure to respond to Plaintiff’s Request to Produce with respect to Reasonableness of Charges Defense, and failure to respond to Plaintiff’s Good Faith correspondence, the Plaintiff filed its Ex Parte Motion to Compel discovery responses on October 29, 2015. On October 30, 2015, this Court entered an Order granting Plaintiff’s Ex-Parte Motion to Compel discovery, and giving Defendant ten (10) days to file its response to Plaintiff’s Request to Produce with respect to Reasonableness of Charges Defense, “failing which sanctions may be imposed.”
10. On or about September 18, 2015, the Plaintiff served its Supplemental Interrogatories regarding respect to Reasonableness of Charges Defense. For a fifth time, the Defendant did not respond as required by the Florida Rules of Civil Procedure. On October 24, 2015, in a good faith effort to obtain the Defendant’s response to Plaintiff’s Supplemental Interrogatories regarding respect to Reasonableness of Charges Defense without the necessity of court action, Plaintiff sent correspondence to Defendant advising Defendant that its response to Plaintiff’s Supplemental Interrogatories regarding respect to Reasonableness of Charges Defense was overdue, and requesting Defendant’s response prior to Wednesday, October 28, 2015. Defendant failed to provide its discovery response or even respond to Plaintiff’s Good Faith correspondence. As a result of Defendant’s failure to respond to Plaintiff’s Supplemental Interrogatories regarding respect to Reasonableness of Charges Defense, and failure to respond to Plaintiff’s Good Faith correspondence, the Plaintiff filed its Ex Parte Motion to Compel discovery responses on October 29, 2015. On October 30, 2015, this Court entered an Order granting Plaintiff’s Ex-Parte Motion to Compel discovery, and giving Defendant ten (10) days to file its response to Plaintiff’s Supplemental Interrogatories regarding respect to Reasonableness of Charges Defense, “failing which sanctions may be imposed.”
11. On October 7, 2015, as the case was at issue and more than 18 months old, and mediation complete, this Court entered its Order Setting Pretrial Deadlines with Referral to Arbitration. Pursuant to this Court Order, discovery was to be completed no later than fifty (50) days from the date of the order, or no later than November 26, 2015. Once again, this Order failed to trigger any response on behalf of the Defendant.
12. In one last effort to avoid filing this Motion to Strike the Defendant’s Pleadings, Plaintiff sent correspondence to Defendant on November 12, 2015, requesting the Defendant to provide all responses to Plaintiff’s discovery requests, in order to avoid necessitating the Plaintiff to file the instant Motion.
13. On November 23, 2015, the Plaintiff served and filed its Motion to Strike the Pleadings of Defendant for Violations of Five Court Orders, etc. At this time, Defendant had still responded in any fashion to any of Plaintiff’s outstanding discovery requests in the instant case, and had not requested an extension of time in which to provide its responses.
14. On the same day, the arbitrator H. Mark Purdy, Esq., served his arbitration decision in the cause pursuant to Rule 1.820(g)(3).
15. On December 14, 2015, the Defendant rejected the arbitrator’s award, filing its Motion for Trial de Novo.
16. One month after the service of the sanctions motion on Defendant, notwithstanding numerous motions, correspondence, and court orders, and notwithstanding that the Defendant had rejected the arbitrator’s award and requested the matter proceed to jury trial, the Defendant had still responded in any fashion to any of Plaintiff’s outstanding discovery requests in the instant case, and still had not requested an extension of time in which to provide its responses.
17. In determining whether to enter a default judgment as a sanction the appropriate analysis it set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994). Although this case deals with dismissals with prejudice as a sanction, the effect of a default judgment as a sanction is the same: either action disposes of the case. A-1 Mobile MRI, Inc. (a/a/o Marcos Marmol) v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 387d (Broward Cty. Ct. 2005). In Kozel, the Florida Supreme Court set forth principles for addressing the matter, and some guidelines for determining whether such a sanction is appropriate. These principles include whether the purpose of the Florida Rules of Civil Procedure are being upheld, i.e., “to encourage the orderly movement of litigation.” Another principle is that the 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 determining what, if any, sanctions are appropriate for discovery infractions, Kozel requires the Court to consider the following factors: (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, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay creates significant problems of judicial administration. Ham v. Dunmire, 891 So. 2d 492, 496 (Fla. 2004). [30 Fla. L. Weekly S6a]; Kozel v. Ostendorf, 629 So. 2d at 818 (Fla. 1993). Further, the Florida Supreme Court has held that “[a] deliberate and contumacious disregard of the court’s authority will justify application of the severest of sanctions [dismissal or default. . .], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So. 944, 946 (Fla. 1983).
18. This is a civil case involving unpaid PIP benefits, with a recommended resolution standard of eighteen months. Fla. Jud. R. Admin. 2.250(a)(1)(b). In the instant case, the matter has been pending for longer than the eighteen-month period. Defendant’s unwillingness to comply with this Court’s Orders and the rules of discovery have delayed the resolution of this case.
19. Moreover, as a county court case originally filed under the small claims rules, this case involves a relatively small amount in dispute. Plaintiff has incurred a substantial amount of fees in simply trying to obtain information requested and that it has a right to obtain in order to establish its claim at trial. At this point in this particular case, the Defendant’s actions may have caused the Plaintiff to incur more attorneys’ fees than the claim itself.
20. Here, the Court finds that the misconduct at issue lies at the feet of the Defendant itself, i.e., the client. The attorneys in this case are “in house” counsel for the Defendant. Defendant’s attorneys work directly for the Defendant, and have no clients other than Defendant. See A-1 Mobile MRI, Inc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 387d (Broward Cty. Ct. 2005). This particular Defendant apparently believes the Court’s Orders are not “orders,” but rather “suggestions” to which it may comply at its leisure.
21. The Defendant has offered no credible explanation as to why it has continually failed to comply with this Court’s Orders or the rules of discovery. At the hearing, defense counsel suggested internal procedures make it difficult to keep track of outstanding discovery requests. However, in this case, the Plaintiff and this Court have put the Defendant on direct notice numerous times that discovery was outstanding. It is hard for the Court to fathom that all these orders and contacts get lost in the proverbial crack. Moreover, Defendant cannot create the problem by providing an apparent insufficient number of attorneys and staff to handle its cases, and then try to claim as an excuse that its attorneys have too much work. This excuse has been used by other insurers and rejected by this Court. See A-1 Mobile MRI, Inc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 987a (Broward Cty. Ct. 2005).
22. Finally, this Court finds that Defendant’s conduct has created significant problems of judicial administration in this case, considering the number of motions this Court has had to consider, as well as a lengthy special set hearing, for simply one of the numerous PIP cases this Court has pending in its division.
23. In this particular case, and in considering the factors set forth in Kozel and as analyzed in Mercer, the striking of Defendant’s pleadings are warranted. The Court further finds that no other sanction will suffice, as Defendant has gone far beyond the call of duty in attempting to obtain discovery in this case. In light of the relatively small amount in dispute in this case, and the fact that this case is in a trial posture past a discovery cutoff, with mediation and arbitration complete, the Court finds that further prosecution of this case is not warranted. Perhaps the Defendant will begin to take the steps necessary to insure that the Florida Rules of Civil Procedure and orders of the court meet with consistently prompt and complete compliance. Perhaps the Defendant will begin to see that dilatory conduct will not meet with tacit approval by the court.
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff’s Motion to Strike Defendant’s Pleadings Sanctions is GRANTED. A default is hereby entered against the Defendant for the reasons cited above and pursuant to Kozel. The Plaintiff shall submit a proposed Final Judgment. The pretrial conference scheduled for February 19, 2016 at 1:30 p.m. is hereby canceled.
