24 Fla. L. Weekly Supp. 49a
Online Reference: FLWSUPP 2401RODRInsurance — Personal injury protection — Discovery — Failure to comply — Insurer is required to pay sanctions where its failure to comply with obligation to provide discovery as to factual basis for its denial of relatedness and necessity of treatment unnecessarily prolonged discovery process — Insurer cannot deny discovery request seeking factual basis for its defenses on ground of “burden shifting”
SOUTH FLORIDA PAIN & REHABILITATION OF HIALEAH, LLC, (a/a/o Fabian Rodriguez), Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-012854 (53). March 8, 2016. Robert W. Lee, Judge.
ORDER GRANTING PLAINTIFF’s THIRDMOTION TO COMPEL BETTER ANSWERSTO INTERROGATORIES AND FOR SANCTIONS
THIS CAUSE having come on far hearing on March 4, 2016, on Plaintiff’s Third Motion to Compel Better Answers to Interrogatories and for Sanctions, the Court having heard argument of counsel, and being otherwise duly advised in the Premises, the Court finds as follows:
I. Findings of Fact
1. This is an action arising out of an alleged breach of an insurance contract which provided personal injury protection (“PIP”) benefits.
2. In its Answer and Affirmative Defenses, the Defendant denied that the medical services were medically necessary and causally related to the motor vehicle accident and, it further, that it was not obligated to reimburse the Plaintiff due to improper self-referrals, and a violation of the massage therapy restrictions of the PIP Statute.
3. In paragraphs 7 and 8 of Plaintiffs Interrogatories (“Interrogatories”), it specifically asked the Defendant to provide the factual basis, including the identity of witnesses and documents, to support its denial that the medical services were related and necessary.
4. The Defendant responded that it was not obligated to provide that information as it was Plaintiff’s burden to prow that the medical services were related and necessary, in that the question sought to shift the burden to prove these matters from the Plaintiff to the Defendant. Further, in its different versions of its responses to these Interrogatories, the Defendant repeated its affirmative defenses regarding self-referral and massage therapy.
5. The Plaintiff promulgated letters to the Defendant on three different occasions attempting to secure this discovery prior to seeking Court action, and the Plaintiff fully complied with its obligation of good faith in this regard.
6. The Defendant subsequently stipulated to medical necessity and relatedness on February 18, 2016.
II. Legal Analysis
The Court shares the frustration of Plaintiff’s counsel with the continued failure of the Defendant to provide the information requested in the aforementioned interrogatories regarding the factual basis for the denial by the Defendant of the allegation that the medical services were medically necessary and causally related to the subject motor vehicle accident. Simply stated, a defendant may not properly object to a discovery request seeking the factual basis for its denial of a matter of which the Plaintiff has the burden of proof based upon a claim of “burden shifting.” This objection runs afoul of, and is contradicted by, Fla. R. Civ. P. 1.280(b)(1) which clearly states that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery, or the claim or defense of any other party . . . .”
Here, the Defendant was afforded ample opportunity to comply with its obligation to provide the factual basis for its denial of relatedness and necessity, the failure to do so having unnecessarily prolonged the discovery process.1 Although it ultimately conceded that it was not disputing medical necessity and relatedness, it would appear clear that this stipulation resulted from the vigilant efforts of Plaintiff to secure this discovery. As a consequence of that stipulation, however, the only issue remaining for the Court to decide is the issue of sanctions.2
Therefore, it is hereupon
ORDERED that Plaintiff’s Motion for Sanctions is granted and defense counsel shall pay sanctions of $700.00 to the Law Office of Joseph R. Dawson, P.A., within 10 days of this Order.
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1Plaintiff’s attorney informed the Court that non-compliant responses were not the result of the filings of the attorney present at the hearing and that Mark D. Barth, Esquire, who was not the one responsible for the filing of the motions to compel better discovery responses.
2The Defendant was previously sanctioned for discovery violations by Order dated September 22, 2015.
