25 Fla. L. Weekly Supp. 835a
Online Reference: FLWSUPP 2509GATHInsurance — Personal injury protection — Discovery — Failure to comply — Insurer cannot object to discovery request seeking factual basis for its denial that medical treatment was necessary or related to accident on ground of “burden shifting” — Where insurer’s objections hampered medical provider’s ability to obtain appropriate responses to its discovery requests and delayed its ability to prepare case for resolution, monetary sanctions are imposed
DR. GARY HOSTE a/a/o Stanley Gathoni, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17-002334 (53). November 22, 2017. Robert W. Lee, Judge. Counsel: Joseph Dawson, and Rowena M. Racca, Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Antonio Roldan, for Defendant.
OMNIBUS ORDER OF SANCTIONS DUE TODISCOVERY VIOLATIONS BY DEFENDANT
THIS CAUSE having come on for hearing on November 15, 2017, pursuant to an Order Setting Special Set Hearing on four different motions filed by the Plaintiff wherein the Plaintiff claimed that the responses by the Defendant, including objections, represented evasive responses and objection interposed in bad faith. The Court reviewed the discovery requests and responses, and was aware that Agreed Orders granting the motions were submitted the day prior to the hearing wherein the Defendant conceded that its objections were without merit resulting in the entering of the respective Agreed Orders. This hearing was devoted to a determination of whether the conduct of Defendant warranted sanctions being entered. Based upon the argument of counsel and the explanations offered by Defendant’s counsel, and the Court having otherwise been duly advised in the Premises, the Court finds as follows:
Procedural History and Findings of Fact
1. This is an action for damages arising out of an alleged breach of the insurance contract and a violation of Florida Statute § 627.736 et seq.
2. Plaintiff served Defendant with Interrogatories, Request to Produce and Request for Admissions on March 23, 2017. The Defendant filed its responses on April 21, 2017, which largely comprised of objections, which resulted in the aforesaid motions.
3. Plaintiff served a Supplemental Request to Produce on March 31, 2017, Supplemental Interrogatories on August 3, 2017 and Supplemental Request for Admissions on August 15, 2017. The Defendant responded to these supplemental discovery requests timely, but interposed objections to essentially all of the discovery requests.
4. The objections interposed by the Defendant resulted in the Plaintiff filing its respective motions to compel and to determine the sufficiency of Defendant’s responses to the requests for admissions, which resulted in the Special Set Hearing being set.
5. Because Agreed Orders were entered granting the discovery just prior to the hearings, the Court deduces that the Defendant acknowledges that its responses to the five different discovery requests was not supported by the application of the law to those responses.
6. Plaintiff’s discovery requests sought discovery of matters properly framed by the pleadings and which were discoverable pursuant to Fla. R. Civ. P. 1.280(b)(1), which states that “[P]arties may obtain discovery regarding any matter, not privileged, it is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery with claim or defense of any other party ….”
Conclusions of Law
7. Reviewing the Defendant’s maladroit responses to the discovery responses reflects a common theme of obstreperous responses to Plaintiff’s legitimate discovery requests engendered to discovering facts related to the denial that the medical services provided to the insured were medically necessary and causally related to the subject motor vehicle accident.
8. To justify the objections, defense counsel stated that the Plaintiff had not met its burden of establishing “its burden” of relatedness and necessity to justify its discovery requests. Although often stated as a basis for an objection, this Court has stated in the past that this objection is without merit. As was stated by this Court in So. Fla. Pain & Rehabilitation of Hialeah, LLC (a/a/o Fabian Rodriguez) vs. Star Casualty Ins. Co., 24 Fla. L. Weekly Supp. 49a (Brwd. Cty. Judge Robert Lee March 8, 2016), “[s]imply stated, a defendant may not properly object to a discovery request seeking the factual basis of its denial of a matter of which the Plaintiff has the burden of proof based upon a claim of “burden shifting.”
9. To be clear, a party is entitled to discovery regarding any claim or defense of its opponent. This is the very purpose of discovery. To object to discovery requests, seeking the basis for the denial that the subject medical treatment was necessary or relatedness based upon the claim that proving those matters is plaintiff’s burden, is a feckless objection wholly lacking in merit and represents a failure to act in good faith.
10. The Florida Supreme Court recently addressed this type of evasive discovery gamesmanship in Bainter v. League of Woman Voters of Fla., Inc., 150 So. 2d 1115, 1118 (Fla. 2014) [39 Fla. L. Weekly S689a], when Justice Pariente wrote:
We simply do not countenance and will not tolerate actions during litigation that are not forthright that are designed to delay and obfuscate the discovery process. As this Court has long stated, full and fair discovery is essential to the truth-finding function of our justice system, and parties and non-parties alike must comply not only with the ‘technical provisions of the discovery rules,’ but also with ‘the purpose and spirit of those rules in both the criminal and civil context.’
(citing to Scipio v. State, 928 So. 2d 1138, 1144 (Fla. 2006) [31 Fla. L. Weekly S114a]).
11. This Court recognizes the body of appellate courts decisions which condemns the gamesmanship being implemented by the Defendant as nothing less than obstreperous tactics to avoid providing meaningful discovery responses. “As the Supreme Court observed in Cabot v. Clearwater Construction Company, Fla. 1956, 89 So. 2d 662, at 664: “*** No longer are we concerned with the ‘tricks and technicalities of the trade’. The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.” Herold v. Computer Components Intern’l., Inc., 252 So. 2d 576, 579-580 (Fla. 4th DCA 1971).
12. While Griffith v. Ramzey’s A Plus Inc., 186 So. 2d 629 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D566b] states that the Court is not obligated to make finding consistent with the requirements of Kozel v. Ostendolf, 629 So. 2d 817 (Fla. 1993), the Court does note that the defense counsel is employed by the Defendant in an “in-house” capacity.
13. Further, no arguable legal basis to support the objections was offered at the hearing on the objections. To obfuscate the factual basis for the denial of medical necessity and relatedness in a PIP case reflects a callous indifference to the discovery obligations imposed upon attorneys. As was stated by Judge Nesbitt in the 1982 decision in Summit Chase Condo. Ass’n., Inc., v. Protean Investors, Inc., 421 So. 2d 562, 564 (Fla. 3d DCA 1982):
The openness of modem discovery is recognized to the point where the discovery process is for the most part self-executing. The superintendence of trial judges should be resorted to only with respect to whether information should be disgorged in the sequence or timing of its proliferation. It is inherent in the present rules of discovery that lawyers, out of respect for the adversary system, should make good faith efforts to comply with one another’s reasonable discovery requests without constant recourse to the trial courts. This is especially so when counsel know full well that compliance with discovery is inevitable if sanctions are to be avoided.
14. Discovery is not intended to be an insular game of how little is disgorged, and how long can a party take to disgorge it. These tactics serve only serve to delay the disposition of a case, and, further, to necessitate the expenditure of time on the part of the party seeking the discovery, as well as to improperly waste the precious resources of the Court in order to address these baseless objections.
15. The Court finds that Defendant’s inimical objections, all overruled by agreement of the Defendant, had a deleterious affect on Plaintiff’s right to obtain appropriate responses to its discovery requests which delayed the Plaintiff’s ability to prepare this case for resolution.
16. Prior to seeking Court action on these motions, the Plaintiff made a good faith effort to secure this discovery by contacting the Defendant, which included promulgating correspondence to opposing counsel seeking compliant responses. While the parties did arrive at agreements regarding the objections the day prior to the hearing, this agreement did not ameliorate the impact of the delay caused by the baseless objections of the Defendant.
17. As a consequence of this bad-faith conduct, the Court finds that sanctions are appropriate. As such, based upon the time expended by Plaintiff’s counsel, the sum of $1,750.00 is awarded to be paid to Plaintiffs counsel within 30 days.
Rulings of the Court
It is hereupon ordered that the Motions for Sanctions are well-founded given the totality of the responses to Plaintiff’s discovery requests. The Defendant shall pay to Plaintiff the sum of $1,750.00, within 30 days of this Order.
