25 Fla. L. Weekly Supp. 1047c
Online Reference: FLWSUPP 2512THANInsurance — Discovery — Failure to comply — Sanctions — Court strikes insurer’s pleadings as sanction for intentionally and knowingly violating three discovery orders, filing discovery responses that were insufficient and non-responsive, and repeatedly filing frivolous objections to discovery
RUSSELL T. ELBA D.C., P.A. d/b/a WORLDWIDE CHIROPRACTIC WELLNESS a/a/o Lynn Thang, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-014644 COCE (51). February 21, 2018. Kathleen McCarthy, Judge. Counsel: Vincent Rutigliano, Rosenberg & Rosenberg, P.A., Hollywood, for Plaintiff. Blake Partridge, for Defendant.
ORDERON PLAINTIFF’S MOTIONTO STRIKE THE DEFENDANT’S PLEADINGS
This cause having come before the Court on Plaintiff’s Motion to Strike the Defendant’s Pleadings dated 10/18/17, the Court having heard argument of the parties, and being otherwise advised in the premises it is hereby ORDERED AND ADJUDGED, as follows:
Findings of Fact
The Plaintiff provided medical services to Lynn Thang from July 29, 2015 through January 29, 2016. The Plaintiff billed the Defendant $11,890.00 for said services. The Plaintiff, in the prosecution of this case, propounded a set of interrogatories, request for production and request for admissions to the Defendant in an effort to discover the basis of the Defendant’s affirmative defenses and the positions they had taken relative to the at issue bills. When the Defendant objected to and otherwise failed to properly respond to the overwhelming majority of the discovery requests the Plaintiff filed a motion to compel. The Court, on March 9, 2017, held an extensive hearing on Plaintiff’s motion and two orders were ultimately entered. After the Defendant field a motion for clarification and to strike the previous Court order the Court, on April 24, 2017, held a another hearing on said discovery and a third order was ultimately entered. The Defendant failed to comply with each and every one of said orders. As a result of said failure the Plaintiff filed a second motion to compel. The Court, on September 27, 2017, held a third hearing and entered an order stating:
The Defendant shall fully and completely comply with the March 9, 2017 and April 24, 2017 orders within 20 days. If the Defendant fails to comply the Plaintiff will be provided an expedited hearing where the Court will entertain the imposition of sanctions including that of striking the Defendant’s pleadings.
When the Defendant failed to file an amended answer to the interrogatories, failed to submit the requested documents for an in camera inspection and failed to comply with material provisions of the foregoing orders as they pertained to the request for admissions and request for production the Plaintiff on October 18, 2017 served a Motion to Strike the Defendant’s Pleadings. The Defendant on October 20, 2017 served an amended response to the interrogatories which, during the instant hearing, the Plaintiff argued was materially insufficient and not in compliance with the Court’s prior orders.
Findings of Law
This Court finds that the Defendant intentionally and knowingly violated the Court’s March 9, 2017 orders, April 24, 2017 order and the September 27, 2017 order. The Court finds that the amended responses filed by the Defendant to the interrogatories, request for admissions and request for production were insufficient, non-responsive, asserted objections to discovery items this Court ordered the Defendant to answer and otherwise materially violated the orders of this Court.
This Court finds that the Defendant did not act in good faith during the discovery process. The Court further finds that the Defendant exhibited willful disregard and gross indifference to the orders of this Court. The Defendant repeatedly filed frivolous objections and / or non-answers to discovery which forced the Plaintiff to file motions and attend hearings solely to get information that should have been provided from day one. As of the date of the instant hearing the Defendant had not complied with the orders of this Court as it related to the interrogatories, request for admissions, request for production or the submission of documents for an in camera inspection.
In determining whether the sanction of the entry of default against the Defendant was warranted the Court considered the six-prong test delineated in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993):
1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.
The Court finds that the Defendant’s actions as outlined above has severely and materially prejudiced the Plaintiff in its prosecution of the instant matter and has created significant problems of judicial administration in this case. The Court, in consideration of the factors outlined in Kozel, supra, hereby strikes the Defendant’s Pleadings and directs the Plaintiff to submit a proposed Final Judgment.
