24 Fla. L. Weekly Supp. 544a
Online Reference: FLWSUPP 2407NARCInsurance — Discovery — Depositions — Motion for reconsideration of order regarding insurer’s failure to cooperate in scheduling deposition of its corporate representative is denied where motion contains arguments that should have been, could have been or were raised at hearing
FLORIDA HOSPITAL MEDICAL CENTER, as assignee of Editha Narceda, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015-20368 CONS, Division 84. August 25, 2016. Dawn P. Fields, Judge.
ORDER DENYING DEFENDANT’SMOTION FOR RECONSIDERATION
THIS CAUSE coming before the Court on July 26, 2016, upon Defendant’s Motion for Reconsideration and the Court having ordered Plaintiff to respond and having reviewed the Motion, the Plaintiff’s Response filed August 11, 2016, and being otherwise fully advised in the premises, DENIES Defendant’s Motion for Reconsideration and writes an Opinion addressing matters addressed in the Motion.
1. Paragraph four of Defendant’s Motion indicates that “[on] April 20, 2016, in response to Plaintiff’s request for hearing dates, Defendant advised Plaintiff it did not object to Producing. . . .” the corporate representative for deposition. (emphasis added) The Motion fails to indicate, until much later, that the Plaintiff had made that same request on April 13, 2015, April 18, 2015, and May 18, 2015, for which the Defendant never responded, until at the Hearing, more than one year later. In fact, it was not until paragraph 27 of the Motion that Defendant provided a written explanation for the lack of response which could have and should have been communicated to Plaintiff’s Counsel in April, or May of 2015, and again at the beginning of the Motion when the Defendant was explaining and reciting the timeline and the history of the case. The Court finds that, although the Defendant may not have violated any Rules Regulating The Florida Bar, specifically Rule 4-3.3 Candor Towards the Tribunal, the facts were not presented in a manner that provided the Court an organized history of the case. Additionally, although Defendant may not have violated any rules relating to communication with opposing counsel, Chapter 4 of the Rules Regulating The Florida Bar reminds us that a lawyers’ professional conduct includes a responsibility to expedite litigation and to provide information to opposing counsel that is relevant or reasonably foreseeable to relevancy.
2. Paragraph eight of the Motion indicates that “. . Defendant again offered to coordinate the deposition. . .” dates, and provided dates of September 27, 2016, October 4, 2016, or October 18, 2016, but the Court’s review of the emails between the parties reflects that the Defendant’s Attorney indicated unavailability for the date of October 4, 2016, which, in effect, only offered Plaintiff two dates, offered 3:24 p.m., the day before the Hearing, and probably less than 2 hours before close of business day. If the intent of that paragraph was to convince the Court that the Defendant attempted to comply with the Rules of Discovery or was mindful of the Florida Rules of Judicial Administration Time Standards for Trial Courts, it fails.
3. In paragraphs 11 and 15, the Defendant’s Motion encourages the Court to consider the Plaintiff’s Motion moot when heard on June 24, 2016, because the issue had been so “. . .fully resolved that a judicial determination (could) have no actual effect”. However, the email attached to the Defendant’s Motion indicates that the last offered dates of September 27, October 4, and October 18, 2016, were not acceptable to the Plaintiff and, therefore, rejected. The issue, therefore, was not moot as a depositions date had not been agreed upon when the parties appeared for the Hearing.
4. Paragraph 11 additionally indicates that the Defendant believes that the Court awarded “sanctions”, notwithstanding the fact that the Court, in the Hearing, specifically indicated that the Court would not award “Sanctions”. The Court did not find that either the attorneys or the Defendant engaged in any act that could be characterized as willful, deliberate, gross, in bad faith or an act of disobedience, and specifically avoided using any of these terms during the Hearing. The Court specifically awarded the reasonable cost to the plaintiff of brining the issue to Hearing, which, the Court found, could have been avoided.
5. Paragraphs 18 and 19 indicate that because the Defendant offered dates for deposition which were earlier than the deadline the Court ultimately imposed, that there was “. .no actual effect resulted from this Court’s Judicial determination.” The Court’s disagrees. An agreed date between parties may not have an “actual effect” but a Mandatory date imposed by the Court does.
6. The Defendant believes that the Court overlooked several salient factors. The Court finds that the Motion to Reconsider contains arguments that should have, could have, and/or were raised at the Hearing and, therefore, the filing of Motion to Reconsider does not appear to be supported by case law, rules, statutes or common and routine practice procedures and no salient (defined as “notably significant) factors were overlooked or presented in the Motion. The Motion was not filed in an attempt to correct manifest errors, correct a situation where the Court significantly misunderstood part or where the Court made a decision outside of the scope of the issue presented. . Cf., E. I. Du Pont de Nemours v. Native Hammock Nursery Inc., 698 So. 2d 267, 269 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1128b](When the court is exercising its discretion to grant a new trial, court should consider “Would the new evidence probably change the result if a new trial is granted? Has it been discovered since the trial? Could it have been discovered before the trial by the exercise of due diligence? Is it material to the issues? Is it merely cumulative or impeaching?”)
