25 Fla. L. Weekly Supp. 841a
Online Reference: FLWSUPP 2509JONEInsurance — Personal injury protection — Discovery — Failure to comply — Insurer’s pleadings are stricken and default judgment is entered where insurer has repeatedly failed to comply with discovery requests and ignored orders compelling compliance with those requests; insurer’s conduct was willful, deliberate and contumacious; insurer and its attorneys have previously been sanctioned for similar conduct; and insurer’s conduct has prejudiced medical provider and created significant problem of judicial administration
EASTSIDE CHIROPRACTIC CENTER, INC., a/a/o Dexter Jones, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court in and for Broward County. Case No. COCE 09-008939. November 28, 2017. Mardi Levey Cohen, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Sean Sweeney, House Counsel, UAIC, for Defendant.
ORDER PLAINTIFF’S MOTION TO STRIKE DEFENDANT’SPLEADINGS AND ENTERING FINAL JUDGMENTIN FAVOR OF THE PLAINTIFF
THIS CAUSE having come to be considered on September 25, 2017, on Plaintiff’s Motion to Strike Defendant’s Pleadings, and the Court having heard argument from counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereby ORDERED AND ADJUDGED as follows:
FINDINGS OF FACT
1. This lawsuit arises out of a claim for unpaid personal injury protection benefits.
2. During the course of litigation, the Defendant has developed a pattern of ignoring Court orders and failing to comply with the Florida Rules of Civil Procedure.
3. On or about December 03, 2014, Plaintiff propounded Expert Witness Requests for Production to Defendant. The deadline for Defendant to respond was January 07, 2015. Defendant failed to comply.
a. Plaintiff was forced to file an ex parte motion to compel, which the Court granted on May 09, 2017, giving Defendant 10 days to answer the discovery. Defendant again failed to comply.
4. On or about December 10, 2014, Plaintiff propounded Expert Witness Interrogatories to Defendant. The deadline for Defendant to respond was January 14, 2015. Defendant once again failed to comply.
a. Plaintiff was forced to file an ex parte motion to compel, which this Court granted on May 09, 2017, giving Defendant 10 days to answer the discovery. Defendant again failed to comply.
5. On or about June 05, 2017, Plaintiff propounded its Second Request to Produce to Defendant. The deadline for Defendant to respond was July 10, 2017. Defendant again failed to comply.
a. Plaintiff was forced to file an ex parte motion to compel, which this Court granted on July 21, 2017, giving Defendant 10 days to answer the discovery. Defendant again failed to comply.
6. On or about June 06, 2017, Plaintiff propounded its Third Request to Produce to Defendant. The deadline for Defendant to respond was July 22, 2017. Defendant again failed to comply.
a. Plaintiff was forced to file an ex parte motion to compel, which this Court granted on July 21, 2017, giving Defendant 10 days to answer the discovery. Defendant once again failed to comply.
7. On August 01, 2017, almost 60 days ago, Plaintiff filed its motion to strike Defendant’s pleadings, for failure to comply with all of the above discovery requests and orders.
8. Despite the fact that Defendant knew that Plaintiff’s motion to strike would be called up for hearing on September 25, 2017, Defendant took no action prior to the hearing to respond to the outstanding discovery or to comply with the multiple orders.
ANALYSIS AND CONCLUSIONS OF LAW
1. Rule 1.380(d) of the Florida Rules of Civil Procedure provides, in pertinent part, as follows:
If a party . . . fails . . . (3) to serve a written response to a request for inspection submitted under rule 1.350 after proper service of the request, the court in which the action is pending may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule….
2. Rule 1.380(b)(2) of the Florida Rules of Civil Procedure provides, in pertinent part, as follows:
If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make any of the following orders:
(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient party to support or oppose, designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an order treating as contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.
(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.
Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
3. After giving Defendant multiple opportunities and ample time to comply with the outstanding discovery and the Court’s orders the Defendant has failed to comply. The Court specifically finds that Defendant’s violation of the Court’s orders to respond to relevant discovery was willful and deliberate.
4. A Court order resolves the issue pending before the court. The order must be complied with by the parties. This is a basic tenet of the system of justice. To ignore a court ruling once is sanctionable, but then to continue to thwart the rule of law is a blatant disrespect of the system. The fact that Defendant continued to ignore multiple court orders without good cause warrants the imposition of appropriate sanctions.
5. Based on the record, the Court further finds that Defendant’s conduct is so egregious that the remedy of having its pleadings stricken and default judgment entered is appropriate under these facts.
6. In determining whether the sanction of the entry of a default against Defendant is warranted, the Court is mindful of the six-prong test delineated in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994); see also, Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) [30 Fla. L. Weekly S6a] and Mercer v. Raine, 443 So. 2d 944 (Fla. 1983):
a. Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
b. Whether the attorney has been previously sanctioned;
c. Whether the client was personally involved in the act of disobedience;
d. Whether the delay prejudiced the opposing party through undo expense, loss of evidence or some other fashion;
e. Whether the attorney offered reasonable justification for noncompliance; and
f. Whether the delay created significant problems of judicial administration.
7. The Court finds that the Defendant’s conduct was willful, deliberate, and contumacious rather than an act of neglect or inexperience. The Court points out that the attorneys that have been involved with the litigation of this matter have been admitted to the Florida Bar for some time now and are all experienced attorneys. Additionally, Defendant and its counsel were well aware of the outstanding discovery and this Court’s multiple order, such that Defendant’s failure to comply demonstrates its complete disregard for the Court’s authority, the Rules of Civil Procedure and the justice system.
8. The Court notes that the Defendant and its attorneys have been previously sanctioned for similar conduct in other matters in this jurisdiction.1
9. The Court finds that Defendant’s willful failure to abide by this Court’s orders and the Rules of Civil Procedure has prejudiced the Plaintiff in its attempt to obtain discoverable evidence and to prosecute this matter, which began in 2009, almost nine years ago.
10. At the hearing, the Court asked defense counsel about his failure to comply with the discovery and the orders and defense counsel was unable to offer a reasonable explanation for his clients repeated noncompliance.
11. The Court finds that Defendant’s conduct created a significant problem of judicial administration. Among other things, Defendant’s conduct has resulted in significant delay and the unnecessary use of judicial resources. Again, this case is almost nine years pending in the system.
12. As such, the Court finds that Defendant has clearly engaged in a pattern designed to thwart discovery evincing a continuous pattern of willful, deliberate, and contumacious disregard of the Florida Rules of Civil Procedure and the Court’s multiple orders concerning its obligation to respond. As such, Plaintiff’s motion is granted and Defendant’s pleadings are stricken and default judgment is entered.
The Court finds that there are no triable issues remaining in this matter and directs the Plaintiff to submit a final judgment.
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1See e.g., Joel D. Stein, D.O., P.A. d/b/a Non-Surgical Orthopedics (a/a/o Cynthia Joseph) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 197b (Broward Cty. Ct. 2005) (containing an in-depth analysis by Judge Lee regarding the Defendant, United Automobile Insurance Company).
