25 Fla. L. Weekly Supp. 675a
Online Reference: FLWSUPP 2507NIDEInsurance — Discovery — Admissions — Failure to comply — Response to request for admissions as to genuineness of insurer’s explanations of review was not sufficient where insurer did not review each EOR and make determination as to whether each was or was not a genuine copy
ORTHO REHAB OF HALLANDALE BCH, LLC (a/a/o Nidetz, Andrew), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-26257 COCE 51. September 6, 2017. Kathleen McCarthy, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff.
ORDER GRANTING PLAINTIFF’S MOTION TO DETERMINEINSUFFICIENCY OF DEFENDANT’S RESPONSE TOPLAINTIFF’S REQUEST FOR ADMISSIONS REGARDINGTHE GENUINENESS OF STATE FARM EXPLANATIONSOF REVIEW, AND DEFERRING RULING ON SANCTIONS
THIS CAUSE having come before the Court on August 17, 2017 upon Plaintiff’s Motion for the entry of an Order, determining the responses of the Defendant regarding the genuineness of Defendant’s Explanations of Review to be insufficient, compelling Defendant to provide better answers and motion for sanctions, and the Court having considered the motion, having heard argument of counsel and being otherwise fully advised, it is hereupon
ORDERED as follows:
1. Plaintiff Ortho Rehab of Hallandale Bch, LLC served its Request for Admissions Regarding, the Genuineness of State Farm Explanations of Review on December 2, 2016, to which State Farm served its objections on January 20, 2017.
2. On May 9, 2017, Plaintiff filed its Motion to Determine Insufficiency of Defendant’s Objections to Plaintiff’s Request for Admissions Regarding the Genuineness of State Farm Explanations of Review and for an Award of Sanctions.
3. On May 25, 2017, the parties coordinated a hearing on Plaintiff’s Motion to Determine Insufficiency of Defendant’s Objections to Plaintiff’s Request for Admissions Regarding the Genuineness of State Farm Explanations of Review and for an Award of Sanctions, scheduling the hearing for August 17, 2017 at 2:15 p.m.
4. On August 17, 2017 at 12:15 p.m., two hours prior to the scheduled hearing, State Farm filed a new Response to Plaintiff’s Request for Admissions Regarding Genuineness of State Farm Explanations of Review, in which State Farm responded to each of the admissions requests as follows:
To the extent that the attached document is an exact copy of an Explanation of Review that has been produced to Plaintiff by Defendant in response to a Request for Production or otherwise in this case, related to the subject motor vehicle accident, Claimant, and treatment, and not altered by the Plaintiff in any way, Admits. Otherwise, Denies.
5. State Farm’s new Response is insufficient, as it does not comply with Rule 1.370(a), Fla. R.Civ.P. Pursuant to that rule, a party is entitled to serve upon any party a written request for the admission of the truth of any matters within the scope of rule 1.280(b), including the genuineness of any documents described in the request. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder.
6. In this case, State Farm may not respond in a generic fashion that it admits the genuine of an Explanation of Review (“EOR”) to the extent that the EOR is an exact copy of an EOR produced by State Farm, related to the subject motor vehicle accident, Claimant and treatment, and not altered by the Plaintiff in any way. State Farm is required to review each specific EOR attached to Plaintiff’s Request for Admissions and make a determination as to whether the specific EOR is or is not a genuine copy.
7. As provided in Rule 1.370(a), when good faith requires that State Farm qualify an answer or deny only a part of the matter of which an admission is requested as to any specific EOR, State Farm shall specify so much of it as is true and qualify or deny the remainder. More particularly, to the extent that there are handwritten notes, notations or other extraneous material on the face of an FOR that otherwise appears to be genuine, State Farm shall specify that the handwritten notes, notations or other extraneous material are not part of the original State Farm EOR, but that the EOR is otherwise a genuine copy.
8. Defendant shall provide the better responses to Plaintiff’s Request for Admissions Regarding the Genuineness of State Farm Explanations of Review within 30 days.
9. Rule 1.370(a), Fla.R.Civ.P. provides that the provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion. Rule 1.380(4) provides that the court shall require the party whose conduct necessitated the motion or counsel advising the conduct 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 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.
10. Plaintiff did certify that a good faith effort was made to obtain the discovery without court action, attaching a copy of the communication evidencing that good faith effort in advance of the filing of its motion.
11. The Court defers ruling on the Plaintiff’s motion for sanctions.
