25 Fla. L. Weekly Supp. 366a
Online Reference: FLWSUPP 2504LYNCInsurance — Personal injury protection — Discovery — Examination under oath — Plaintiff’s motion to exclude insured’s examination under oath is granted, and insurer is excluded from using EUO at trial for any purpose based on insurer’s having refused for over three years to produce EUO to plaintiff, although it is undisputed that insurer relied on EUO in support of its affirmative defense and ultimate denial of PIP claim
LAB QUEST & FAMILY CHIROPRACTIC ASSOCIATION, INC., a/s/o Shanquail Lynch, Plaintiff, vs. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-CC-007785-O. March 22, 2017. Eric DuBois, Judge. Counsel: Dave T. Sooklal, Anthony-Smith Law, P.A., Orlando, for Plaintiff. Oluwaseun Aduloju, Law Offices of Suzanne F. Villa, Orlando, for Defendant.
ORDER REGARDING PLAINTIFF’S MOTIONIN LIMINE/MOTION TO EXCLUDEEXAMINATION UNDER OATH
THIS CAUSE, having come before the Court upon Plaintiff’s Motion in Limine/Motion to Exclude Examination Under Oath, and the Court having heard argument from both Parties and otherwise being fully advised of the premises regarding the same, it hereby:
ORDERED AND ADJUDGED as follows:
BACKGROUND
1. The instant lawsuit was filed on June 19, 2013, wherein Plaintiff brought suit against the Defendant seeking reimbursement of Personal Injury Protection (“PIP”) benefits for treatment Plaintiff rendered to the Defendant’s insured, Shanquail Lynch (“Lynch”).
2. Prior to the institution of the subject lawsuit, Defendant took the Examination Under Oath (“EUO”) of Shanquail Lynch on February 28, 2011.
3. Plaintiff’s initial discovery served on Defendant on July 1, 2013, with service of the lawsuit requested the following:
a. Any and all documents containing any information on what was said by the Insured or Assignor at any time during the handling of any claim for this accident including adjuster notes, claim reports, interoffice memorandum, tape recordings of any statements made by the Assignor, SHANQUAIL LYNCH, or the Plaintiff, or the Insured and any transcript or written statement of the Insured, SHANQUAIL LYNCH or the Plaintiff;
b. Any and all statements taken by the Defendant of SHANQUAIL LYNCH with regard to the subject motor vehicle accident or any treatment received as a result of the subject motor vehicle accident;
c. Any and all statements taken by the Defendant of any witnesses with regard to any fact or relevant to any fact in this case. This request includes any statement taken prior or subsequent to the filing of suit in this matter;
d. Any and all documents, letter or any paper whatsoever that supports Defendant’s contention that the subject motor vehicle accident did not occur as indicated in Defendant’s letter dated November 29, 2011; and,
e. Any and all documents, letter or any paper whatsoever that supports Defendant’s contention SHANQUAIL LYNCH’s injuries were not casually related to the October 11, 2010 motor vehicle accident as indicated in Defendant’s letter dated November 29, 2011.
4. The foregoing requests necessary included Lynch’s EUO.
5. In response, Defendant refused to produce Lynch’s EUO claiming work product privilege to the same.
6. Subsequently, Plaintiff took the deposition of Defendant’s Corporate Representative Peter Harriott on February 19, 2015, regarding Defendant’s reasons for denial of the instant claim.
7. Harriott unequivocally testified that the Defendant is relying on Lynch’s EUO in support of its denial of the instant PIP claim and ultimate defense of this action.
8. In fact Harriott testified that the Defendant relies on the EUO in support of its position that there is no causal relationship between Lynch’s injuries and the subject accident, which the Defendant has pled as an affirmative defense.
9. Thus, it is undisputed that Defendant relies on the EUO in support of its affirmative defense and ultimate denial of the instant PIP claim.
10. Thereafter, the deposition of Shanquail Lynch commenced on February 15, 2017.
11. Accordingly, Defendant had the advantage of strategizing and litigating this case in possession Lynch’s EUO including preparing to take Lynch’s deposition, while Plaintiff has not.
12. Nevertheless, Defendant has refused to produce Lynch’s EUO to the Plaintiff.
13. Florida law is resolute in its prevention to trial by ambush, through “surprise, trickery, bluff and legal gymnastics.” Northup v. Acken, 865 So. 2d 1267, 1271 (Fla. 2004) [29 Fla. L. Weekly S37a]; See Id. at 1270 (holding that when a party reasonably expects or intends to utilize an item before the court at trial, for impeachment or otherwise, the evidence is fully discoverable and in not privileged work product).
14. Moreover, “The primary purpose of discovery under the rules of civil procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics.” See Grinnell Corp. v. Palms 2100 Ocean Blvd., LTD., 924 So. 2d 887, 893 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D726a].
15. Here, Defendant has placed itself in an advantageous litigation position by refusing to produce Lynch’s EUO to Plaintiff though Defendant has been in possession of the same for over six (6) years, including the entirety of this litigation — over three and a half years.
16. In particular, Defendant has developed its legal strategy based on Lynch’s EUO, including but not limited to: admittedly denying and ultimately defending the instant PIP claim based on the statements made in the EUO and pleading affirmative defenses based on the same; and, preparing to take Lynch’s deposition — while Plaintiff has not been afforded the same opportunity.
17. Accordingly, Plaintiff has been prejudiced by being forced to litigate this matter without Lynch’s EUO for over three and a half years, while Defendant has been in possession of the same for the entirety of the pendency of this action, it is:
ORDERED AND ADJUDGED as follows:
· Plaintiff’s Motion in Limine/Motion to Exclude Examination Under Oath GRANTED;
· Defendant is precluded from utilizing Shanquail Lynch’s Examination Under Oath for any purpose at trial.
