25 Fla. L. Weekly Supp. 637a
Online Reference: FLWSUPP 2507CARMInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Attorney’s fees — Amount of attorney’s fees to be awarded as sanction for insurer’s failure to respond to discovery requests and violation of court orders requiring compliance with discovery requests
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., as assignee of Jason Carmoega, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2010-SC-003275-O. July 26, 2017. Faye L. Allen, Judge.
ORDER AWARDING MONETARY SANCTIONS TOPLAINTIFF AGAINST DEFENDANT PURSUANT TOTHE COURT’S ORDER DATED FEBRUARY 22,2017 GRANTING PLAINTIFF’S MOTION FOR SANCTIONS
THIS CAUSE, an Evidentiary Hearing to Determine Amount of Sanctions to be Awarded to Plaintiff Pursuant to Court Order dated February 22, 2017, came to be heard on July 21, 2017 and the Court having considered Plaintiff’s Motion to Strike Defendant’s Pleadings or in the Alternative, Plaintiff’s Motion for Sanctions, having reviewed the Court’s Order dated February 22, 2017, having examined the Court file, including the filed Affidavit of Mark A. Cederberg, Esq. and the time sheets/costs attached thereto, having heard testimony from Plaintiff’s and Defendant’s fee experts and being otherwise advised in the premises, makes the following findings:
1. This case involved a claim for PIP benefits arising out of an automobile accident that occurred on December 17, 2009. The insured, Jason Carmoega, was alleged to have sustained injuries arising out of the accident, and sought treatment from the Plaintiff, FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A. in the Emergency Department at Florida Hospital. The insured assigned his PIP insurance benefits to the Plaintiff. The Plaintiff billed the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, for medical treatment rendered on December 17, 2009. The Defendant did not pay two (2) out of the three (3) CPT codes that were billed by Plaintiff for the emergency services and care provided to Mr. Carmoega on December 17, 2009. Thereafter, Plaintiff filed this suit alleging that the Defendant improperly failed to pay for the emergency services and care rendered to Mr. Carmoega under his PIP coverage as required under Section 627.736(4)(c), Florida Statutes and the subject policy of insurance. Thereafter, Plaintiff submitted a pre-suit demand letter to Defendant pursuant to Section 627.736(10) seeking payment for the bill at issue. Defendant did not make payment to Plaintiff for the bill at issue in response to the pre-suit demand letter; accordingly, Plaintiff filed the instant law suit seeking to recover the amount due for the date of service at issue plus interest. Following the filing of suit, Defendant failed to respond to discovery requests, including providing documents necessary for Plaintiff to prepare for, and take, the deposition of Defendant’s Corporate Representative. Because of Defendant’s failure or refusal to engage in discovery, the Plaintiff was required to cancel and re-schedule the deposition of Defendant’s Corporate Representative no less than four (4) times. More egregiously, the Defendant violated two (2) court orders requiring compliance with Plaintiff’s written discovery requests by simply ignoring this Court’s orders. Plaintiff was required to draft and file a Motion to Strike Defendant’s Pleadings or in the Alternative, Plaintiff’s Motion for Sanctions. Plaintiff’s Motion was heard by the Court on February 15, 2017 and an Order was entered by the Court on February 22, 2017 granting sanctions in favor of the Plaintiff and against the Defendant. At that time, Defendant agreed to pay the benefits due, together with interest. As the parties could not reach an agreement on the amount of sanctions, the Court reserved jurisdiction to determine the amount culminating in the Evidentiary Hearing on July 21, 2107 that is the subject of this Order,
2. The Court has based its decision on and applied the factors contained in StandardGuaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999) [24 Fla. L. Weekly S220a] and Florida Bar Rule 4-1.5 in addition to the information outlined in the opening paragraph of this Order.
3. NUMBER OF HOURS: The Court finds that Plaintiff’s counsel, Mark A. Cederberg, Esquire, reasonably expended 9.1 hours on tasks addressed in ¶ 1(a) of this Court’s Order dated February 22, 2017 that are subject to court-awarded sanctions. The Court finds that Plaintiff’s counsel, Rutledge M. Bradford, Esquire, reasonably expended 4.5hours on tasks addressed in ¶ 1(a) of this Court’s Order dated February 22, 2017 that are subject to court-awarded sanctions.
4. HOURLY RATE: The Court finds a reasonable hourly rate for Mark A. Cederberg, Esquire in this case is $550.00. The Court finds a reasonable hourly rate for Rutledge M. Bradford, Esquire in this case is $600.00.
5. TAXABLE COSTS: The Court finds that the Plaintiff’s counsel, Mark A. Cederberg, Esquire and Rutledge M. Bradford, Esquire incurred reasonable costs in the amount of $95.00 for the court reporter fee for the Evidentiary Hearing that is the subject of court-awarded sanctions as stipulated between the parties.
6. EXPERT WITNESS FEE: Plaintiff’s expert witness on attorneys’ fees/costs, Herb McMillan, Esquire, is entitled to be compensated for the time expended in preparing to testify in this case. Mr. McMillan reasonably expended 1.5 hours in this case, and a reasonable hourly rate for Mr. McMillan is $600.00. See Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D627c]; and, Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D2106a].
WHEREFORE, it is hereby ORDERED AND ADJUDGED:
1. Monetary sanctions in favor of Plaintiff and against Defendant is GRANTED.
2. Plaintiff shall take from Defendant the TOTAL SUM shown below as a sanction pursuant to the Court’s Order dated February 22, 2017 which let the execution issue forthwith:
Attorney’s Fees $ 7,705.00
Costs $ 95.00
Expert Witness Fees $ 900.00
TOTAL SUM* $ 8,700.00
*The total sum shall bear interest at the prevailing statutory interest rate in accordance with Florida Statutes, for which let execution issue.
