25 Fla. L. Weekly Supp. 674a
Online Reference: FLWSUPP 2507DERIInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where medical provider had failed to comply with discovery requests and two court orders on discovery although information had been available to enable compliance, provider’s conduct is found to be willful and contumacious — Provider must pay insurer’s reasonable attorney’s fees incurred in attempting to obtain compliance with discovery requests and is precluded from raising any objection of burdensomeness
PLANTATION OPEN MRI, LLC a/a/o Joseph Derival, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-023563 (56). August 28, 2017. Betsy Benson, Judge. Counsel: Matthew W. Emanuel, Todd Landau, PA, Hallandale Beach, for Plaintiff. Carlos A. Prieto, Dutton Law Group, Ft. Lauderdale, for Defendant.
ORDER ON SANCTIONS PURSUANT TO THIS COURTGRANTING DEFENDANT’S MOTION TO ENFORCECOMPLIANCE WITH THE COURT ORDER ENTEREDON APRIL 24, 2017 AND FOR SANCTIONS
THIS CAUSE having come before the Court after a hearing on August 17, 2017 on Defendant’s Motion to Enforce Compliance with the Court Order Entered on April 24, 2017 and for Sanctions, and the Court having reviewed the documents, the relevant legal authority, and the Court being fully advised in the premises, finds as follows:
On November 1, 2012, the Plaintiff, PLANTATION OPEN MRI, LLC a/a/o Joseph Derival (hereinafter “Plaintiff”), filed this action for personal injury protection benefits.
Thereafter, on March 21, 2014, the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (hereinafter “Defendant”), propounded upon the Plaintiff its Supplemental Request to Produce. As such, Plaintiff’s responses where due on or before April 21, 2014.
On April 28, 2014, the Plaintiff provided responses.
On October 13, 2015, the Defendant filed its Motion to Compel Better Responses and to Overrule Plaintiff’s Objections to Defendant’s Supplemental Request to Produce.
The Motion was set for hearing on February 22, 2016; instead the parties agreed and an Order reflecting same was submitted.
On Febraury 23, 2016, Judge Pratt executed an Agreed Order on Defendant’s Motion to Compel and to Overrule Plaintiff’s Objections to Supplemental Request to Produce. The Order memorialized the agreement that Plaintiff “shall produce all documents showing the amounts it was reimbursed from PIP insurers, for the CPT code(s) at issue, subject to this Court’s ruling on any affidavit of Burdensomeness, which shall be filed by Plaintiff within 30 days from February 22, 2016.” Plaintiff agreed that to comply by March 23, 2016.
On March 11, 2016, the Plaintiff filed its ‘Notice of Filing Deposition of Plaintiff’s Corporate Representative and Proffer of Page and Line Designation Therein in Compliance with Court Order’ and attached the deposition transcript of Mr. Andrew Byers. The deposition was taken in the case of Plantation Open MRI a/a/o Jean D’Haite v. State Farm Mutual Automobile Ins. Co. COCE 12-24787.
In response, the Defendant filed its Motion to Strike Plaintiff’s Notice of Filing Deposition of Plaintiff’s Corporate Representative and Proffer of Page and Line Designation Therein in Compliance with Court Order and Motion to Compel Production of Responsive Documents on May 26, 2016.
The Court granted the Motion after hearing on April 24, 2017. Plaintiff was ordered to file an affidavit of burdensomeness within 30 days, by May 24, 2017.
On May 22, 2017, in lieu of filing an affidavit of burdensomeness, the Plaintiff filed the hearing transcript of the evidentiary hearing on burdensomeness on the Plantation Open MRI a/a/o Shabel Salter v. State Farm Mutual Automobile Ins. Co. COCE 12-10567 which took place before this Court on April 24, 2017. The Plaintiff, however, failed to file the accompanying Order as to the outcome of that hearing, and the Defendant subsequently filed such. On May 31, 2017, the Defendant filed its Motion to Enforce Compliance with Court Order Entered on April 24, 2017 and for Santions which was heard before this court on August 17, 2017.
At the hearing on August 17, 2017, the Defendant provided evidence that Defendant’s counsel made attempts to resolve the discovery issue in order to dispose with the need of a hearing on Defendant’s Motion. Plaintiff indicated that although the information had been available for provision to the Defendant in compliance with the Court’s orders for some time, the Plaintiff had elected not to comply. At the hearing, the Plaintiff failed to provide a reasonable explanation as to (a) why an affidavit of burdensomeness was not filed, (b) why the Plaintiff failed to respond to Defenant’s request, and (c) why the Plaintiff selected to file other documentation other than what was directed under two (2) court orders. At the conclusion of the hearing, Defendant’s Motion was granted.
The purpose of the Florida Rules of Civil Procedure is to promote the orderly movement of litigation. See Kozel v. Ostendorf, 629 So.2d 817 (Fla 1993); Totura & Co., Inc. v. Williams, 754 So.2d 671, 678 (Fla. 2000) [25 Fla. L. Weekly S141a].
Florida Rule of Civil Procedure 1.380(a) allows a party to seek an order for failure to respond to discovery properly served upon an opposing party. Where the party fails to respond to order, Florida Rule of Civil Procedure 1.380(b) provides a procedure for remedy. This Rule states in relevant part:
If a partyor an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, 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 a 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 justified or that other circumstances make an award of expenses unjust.
Fla. R. Civ. P. 1.380(b)(2) (emphasis added).
The decision to impose sanctions, and the severity thereof, are matters within the sound discretion of the trial court. Turner v. Anderson, 376 So. 2d 899 (Fla. 2d DCA 1979). The Defendant’s willingness to willfully and intentionally refuse to comply with the court’s lawful order was justification for the Court to employ the remedies available pursuant to Florida Rule of Civil Procedure 1.380(b). Freeman v. GE Consumer Finance, Inc. a/k/a GE Capital Retail Bank a/k/a GE Money Bank, 20 Fla. L. Weekly Supp. 813a (13th Jud. Cir. Hillsborough Cty. Jun. 28, 2012) (Fernandez, J.).
In the case at bar, the Plaintiff failed to comply with Florida Rule of Civil Procedure 1.350(b), did not respond to Defendant’s good faith efforts to respond to Defendant’s discovery request served on March 21, 2014, Defendant was required to set its Motions as result from Plaintiffs failure, the Plaintiff failed to comply with the terms of an Agreed Order executed by Judge Pratt on February 23, 2016 after the parties conferred and agreed on the terms of that Order, and the Plaintiff once again failed to comply with the terms of the Order executed by this Court on April 24, 2017. This Court finds that Plaintiffs failure to comply with the Court Orders and its conduct to be willful and contumacious. The protracted discovery process and the needless lengthening of the course of this 2012 case has been created by the Plaintiff. As such, the Plaintiff is sanctioned in the amount to be determined as noted below. It is further found that the Plaintiff is precluded from raising any objection of burdensomeness, as Plaintiff has indicated that this information has been available for provision to the defense for some time.
It is ORDERED AND ADJUDGED that the Plaintiff must pay any and all reasonable attorney’s fees and costs incurred by Defendant in attempting to obtain compliance with its discovery requests as outlined above. The Court hereby defers as to the amount of sanctions, subject to the receipt of an affidavit of attorney’s fees and costs from Defendant. This Order also incorporates the terms of the Order executed on August 17, 2017.
