25 Fla. L. Weekly Supp. 550c
Online Reference: FLWSUPP 2506RAMOInsurance — Discovery — Failure to comply — Sanctions — By failing to lodge timely objections to discovery, insurer waived all objections to interrogatories and request to produce other than privilege and burdensomeness — Insurer is directed to serve discovery responses without asserting objections other than privilege and burdensomeness
FLORIDA WELLNESS & REHABILITATION CENTER, INC., (a/a/o Ramos, Nancy), Plaintiff, v. STATE FARM MUTUAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-11309 SP 23 (01). August 14, 21017. Myriam Lehr, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Cory Gorak, Cole, Scott & Kissane, P.A., for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDEDMOTION TO COMPEL DISCOVERY RESPONSES
THIS CAUSE came before the Court on August 10, 2017 upon Plaintiff’s Amended Motion to Compel Defendant’s Responses to First Set of Interrogatories and First Request to Produce, and Waiver of Objections, and the Court having considered the Plaintiff’s Amended Motion, having heard argument of counsel and being otherwise full advised, it is hereby
ORDERED that Plaintiff’s Amended Motion to Compel is GRANTED, for the following reasons:
On April 21, 2016, Plaintiff propounded its First Set of Interrogatories and First Request to Produce.
On June 13, 2016, Plaintiff filed its Motion to Compel Discovery, to which Defendant failed to respond. On March 28, 2017, Plaintiff filed its Amended Motion to Compel Discovery, to which Defendant similarly failed to respond until 8:10 a.m. on August 10, 2017, less than 90 minutes prior to the scheduled 9:30 a.m. hearing on the Amended Motion to Compel. In addition to the two (2) motions to compel, Plaintiff’s counsel forwarded no less than four (4) “good faith” letters or emails to Defendant’s counsel (on June 13, 2016, December 16, 2016, February 17, 2017 and March 28, 2017) in a futile effort to resolve the discovery motions without the necessity for a hearing before this Court. Plaintiff’s Amended Motion to Compel Discovery certifies that a good faith effort was made to obtain the Discovery without the need for this Court’s intervention.
On March 29, 2017, Plaintiff served its Notice of Hearing, scheduling the hearing on its Amended Motion to Compel Discovery for August 10, 2017. It has been more than four (4) months since Plaintiff scheduled the hearing on its Amended Motion to Compel Discovery, and Defendant failed to respond until 8:10 a.m. on the morning of the hearing.
Any and all objections to the First Set of Interrogatories and First Request to Produce, other than privilege, have been waived by virtue of the Defendant’s failure to lodge any timely objections. American Funding, Ltd. v. Hill, 402 So.2d 1369 (Fla. 1st DCA 1981); Insurance Co. of North America v. Nova, 398 So.2 836 (Fla. 5th DCA 1981); Hollywood Pain & Rehab Center, Inc. (a/a/o Ospina, Carlos) v. GEICO General Ins. Co., 23 Fla. L. Weekly Supp. 576a (Broward County, September 29, 2015); Air & Water Technology, Inc. v. Advanced Construction Services Group, 21 Fla. L. Weekly Supp. 155b (Miami-Dade County, November 6, 2013).
Notwithstanding the above authorities, to the extent that Defendant asserts that compliance with any of the individual interrogatories or document requests would be unduly burdensome, counsel may submit an affidavit of burdensomeness, detailing the nature and extent of the burden, for the court’s consideration.
Accordingly, Defendant shall serve Verified Answers to the First Set of Interrogatories and Responses to the First Request to Produce, without asserting objections other than privilege and burdensomeness, together with responsive documents, on or before September 9, 2017, which is thirty (30) days from August 10, 2017. To the extent that Defendant asserts a privilege objection, Defendant shall file an appropriate, detailed privilege log. To the extent that Defendant asserts an objection of burdensomeness, Defendant shall file an appropriate, detailed affidavit.
Plaintiff’s Amended Motion to Compel further seeks an award of attorneys’ fees pursuant to Rule 1.380(a)(4), Fla. R.Civ.P., which permits the Court to require the party whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust. Accordingly, the Court awards attorneys’ fees in favor of the Plaintiff in the amount of $500, payment to be made within 30 days.
