26 Fla. L. Weekly Supp. 985b
Online Reference: FLWSUPP 2612CARMInsurance — Personal injury protection — Answer — Timeliness — Filing answer and affirmative defenses one day after court’s deadline does not warrant sanctions — Discovery — Failure to comply — Where insurer failed to comply with discovery rules and six discovery orders, monetary sanctions are appropriate
CEDA ORTHOPEDICS AND INTERVENTIONAL MEDICINE OF DOWNTOWN/LITTLE HAVANA, a/a/o Eulides Rodriguez Carmenate, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 17-10133-CC-25 (02). December 28, 2018. Elijah Levitt, Judge. Counsel: Edward G. Jimenez, Diverse Legal Solutions, a Law Firm, Inc., Miramar, for Plaintiff. Marcus Griggs, Law Office of Haydee de la Rosa-Tolgysi, Miami, for Defendant.
ORDER DENYING IN PART AND GRANTING IN PARTPLAINTIFF’S JUNE 26, 2018, AND SEPTEMBER 14, 2018,MOTIONS FOR SANCTIONS FORMULTIPLE VIOLATIONS OF COURT ORDERS
THIS CAUSE having come before the Court for hearing on October 31, 2018, on Plaintiff’s June 26, 2018, and September 14, 2018, Motions for Sanctions, and the Court having heard argument of counsel, having reviewed the pleadings, the court docket, and the applicable law, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED:
For the reasons contained herein, Plaintiff’s Motion is denied in part and granted in part.
RELEVANT PROCEDURAL HISTORY
1. On July 27, 2017, Plaintiff Ceda Orthopedics & Interventional Medicine of Downtown/Little Havana, as assignee of Eulides Rodriguez Carmenate, (hereinafter referred to as “Plaintiff”) filed a complaint to recover alleged overdue No-Fault personal injury protection payments from Defendant GEICO General Insurance Company (hereinafter referred to as “Defendant” or “GEICO”). [DE 1]. Specifically, Plaintiff sought expenses in an amount more than $5,000.00 but less than $15,000.00 relating to medical services provided to Defendant’s insured Eulides Rodriguez Carmenate after an automobile accident. Id. The complaint also seeks a declaratory judgment of Plaintiff’s rights due to Defendant’s failure to pay the claim. At the time of the accident, the insured was covered under a policy of insurance that was issued by Defendant and provided personal injury protection (“PIP”) benefits up to $10,000.00. Id.
2. On August 2, 2017, Plaintiff filed its Request for Admissions, Request for Production, and Notice of Interrogatories. [DEs 3, 4, and 6].
3. On October 4, 2017, the Court entered a default against Defendant for failure to file pleadings as required by Florida Rule of Civil Procedure (a)(1). [DE 21].
4. On November 14, 2017, Defendant filed an Answer and an Affirmative Defense alleging that it complied with its contractual obligations. [DE 25].
5. On December 7, 2017, after a hearing, the Court granted Defendant’s Motion to Vacate Default. [DE 31].
6. On December 14, 2017, Defendant filed its first response to Plaintiff’s Request for Production and a Notice of Answer to Plaintiff’s Interrogatories. [DEs 32 and 33].
7. On February 20, 2018, Defendant responded to Plaintiff’s Request for Admissions. [DE 44].
8. On February 21, 2018, the Court held a hearing on Defendant’s alleged failure to comply with discovery requirements. [DEs, 48, 49, and 50].
9. On March 22, 2018, the Court held a second hearing on Defendant’s alleged failure to comply with discovery requirements. [DEs 54, 55, and 56].
10. On June 14, 2018, the Court held a third hearing on Defendant’s alleged failure to comply with discovery requirements. [DEs 75, 76, and 77].
11. On August 29, 2018, the Court held a fourth hearing on Defendant’s alleged failure to comply with discovery requirements and an alleged violation of court orders. [DEs 93 and 94].
12. On October 31, 2018, the Court held a hearing on Plaintiff’s June 26, 2018, and September 14, 2018, motions during which both sides proffered evidence on the issue of sanctions. [DE 107]. The issue of sanctions is the subject of this Order.
13. On December 6, 2018, the Court filed a letter sent by Plaintiff to the Court containing a timeline, which will be discussed later in this Order. [DE 130].
LEGAL AUTHORITIES
In making its determination in this matter, the Court has considered Florida Rules of Civil Procedure 1.010, 1.140, 1.340, 1.350, 1.370, and 1.380, Florida Rule of Judicial Administration 2.250(a)(1)(B), and the Florida Supreme Court’s six (6) sanctioning factors to consider as provided in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), namely:
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.
Id. at 818. The Florida Supreme Court also held, “if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id.
Pursuant to Florida Rule of Civil Procedure 1.010, the purpose of the Florida Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action.”
Florida Rule of Civil Procedure 1.140(a)(1) provides the following regarding the filing of a response to a complaint, “[u]nless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant.”
Florida Rule of Civil Procedure 1.340(a) allows the following regarding a response to interrogatories, “[t]he party to whom the interrogatories are directed shall serve the answers and any objections within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the process and initial pleading upon that defendant.”
Florida Rule of Civil Procedure 1.350(b) offers the following regarding a response to a request to produce, “[t]he party to whom the request is directed shall serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant.”
Florida Rule of Civil Procedure 1.370 provides the following regarding a response to a request for admissions,
“[t]he matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading upon the defendant.”
Florida Rule of Judicial Administration 2.250(a)(1)(B) allows for a case resolution standard of eighteen months from filing to final disposition.
HOLDING
As an initial matter, the Court denies Plaintiff’s motion on the grounds that Defendant was late in filing an amended answer. The record reflects that Defendant’s Amended Answer and Affirmative Defenses were filed one (1) day after the Court’s June 25, 2018, deadline. Although the Court is concerned with Defendant’s failure to timely comply with this court order, a filing one (1) day late does not merit sanctions in this case. Plaintiff also failed to show any prejudice caused by the one-day delay.
Of more troubling concern is Defendant’s failure to comply with six (6) other Court orders (hereinafter referred to collectively as “the six orders”) and the Florida Rules of Civil Procedure.1 Plaintiff provided the following timeline for the Court to consider regarding the six orders:
1. The February 21, 2018 Order — GEICO failed to produce its witnesses for deposition within 120 days.
2. The first March 22, 2018 Order — GEICO failed to produce a “PIP payout” log within 20 days.
3. The second March 22, 2018 Order (part 1) — GEICO failed to file a privilege log.
4. The second March 22, 2018 Order (part 2) — GEICO failed to file better answers to discovery.
5. The August 29, 2018 Order (part 1) — GEICO failed to produce its witnesses for deposition within 30 days.
6. The August 29, 2018 Order (part 2) — GEICO failed to file amended responses to Plaintiff’s request for production within 10 days.
[DE 129 – Letter to Judge filed December 6, 2018]. The Court finds Plaintiff’s timeline to be accurate.
The Court also notes the following:
1. Defendant did not respond to the Complaint within twenty (20) days as required by Florida Rule of Civil Procedure 1.140(a)(1). As a result, the Court entered a Default against Defendant. [DE 21]. The Court later vacated this Default after a hearing. [DE 31].
2. Defendant did not respond to Plaintiff’s Notice of Interrogatories and Request for Production for over four (4) months. [DEs 3, 6, 32, and 33].
3. Defendant did not respond to Plaintiff’s Request for Admissions for over six (6) months. [DEs 4 and 44].
Considering Kozel and the Florida Rules of Civil Procedure, the Court finds that sanctions are appropriate under Florida Rule of Civil Procedure 1.380 for Defendant’s willful and deliberate violations of the six orders and the Florida Rules of Civil Procedure. Defendant’s actions in this matter have thwarted the “just, speedy, and inexpensive determination” of this case. See Fla. R. Civ. P. 1.010; Fla. R. Jud. Admin. 2.250(a)(1)(B). “[W]here a party fails to respond to discovery requests and does not give notice and sound reason for his failure to do so, sanctions should usually be imposed.” Ford Motor Co. v. Garrison, 415 So. 2d 843, 844 (Fla. 1982).
First, Defendant’s attorneys’ repeated failures to comply with court orders were not attributable to a simple act of neglect or inexperience. Defendant provided no reasonable explanation for its noncompliance. Defendant’s counsel Marcus Griggs, Esq., attempted to explain some of the neglect for failing to comply with discovery orders by arguing that another attorney had the file prior to him.2 Nonetheless, Mr. Griggs provided no evidence of the reasons for the other attorney’s failure to comply with court orders. Further, when asked about the failure to provide witnesses for depositions as ordered, Mr. Griggs informed the court that Defendant simply failed to comply with those orders. Defendant’s counsels’ disregard for court orders and the Florida Rules of Civil Procedure shocks this Court. One violation of a court order is disconcerting; six violations of court orders plus a complete indifference to the Florida Rules of Civil Procedure is inexcusable.
Second, Defendant’s actions have created an undue burden on this Court and on Plaintiff’s counsel. Due to Defendant’s conduct, the Court has held multiple hearings on Defendant’s failure to comply with court orders and discovery rules. Arguably, some of the hearings had legitimate issues to litigate; the Court, of course, does not find sanctions to be appropriate for good faith litigation. Nonetheless, in addition to the violations of the six orders, the hearings for which the Court finds sanctions are appropriate are the following:
1) February 21, 2018 — Plaintiff’s motion to compel deposition dates;3
2) August 29, 2018 — Plaintiff’s motion to compel compliance with Court Order on deposition dates, privilege log and to serve better answers to production requests; and
3) October 31, 2018 — Plaintiff’s September 14, 2018, Motion for Sanctions.
Defendant’s intentional ignorance of Court orders and the Florida Rules of Civil Procedure forced the Court to hold these hearings and Plaintiff to file motions and then litigate them. These time-consuming hearings have created problems for the Court’s schedule and staff and impeded the Court’s ability to manage other cases in its division’s large caseload.
Indeed, the issue of sanctioning a party or attorney is not one that this Court takes lightly. In making the determination that sanctions are appropriate in this case, the Court has spent significant time reviewing the docket and case law, conducting hearings, and drafting this Order. After a thorough review of the record evidence and case law, the Court finds that the hearings and motions enumerated at the end of this Order resulted in undue expenses for the Court and Plaintiff’s counsel and are, therefore, sanctionable.
Finally, Defendant’s counsel and Defendant are complicit in the failure to comply with the Court’s orders and the violations of the Florida Rules of Civil Procedure. Defendant’s attorney Mr. Griggs and GEICO have been sanctioned by other courts for similar conduct. See Feeling Good Clinic (a/a/o David De La Torre) v. GEICO Gen. Ins. Co., 26 Fla. L. Weekly Supp. 131a (Fla. Miami-Dade Cty. Ct. April 9, 2018) (Collecting cases in which GEICO and its attorneys have been sanctioned for discovery violations and finding that GEICO’s case assignment procedures caused Mr. Griggs to violate discovery orders.). Further, GEICO’s electronic service address for pleadings filed in this case is “miamipipgeico@geico.com.” Thus, apparently, GEICO receives orders directly when filed. Based on the Feeling Good Clinic Order and the facts of the present case, GEICO either knew or should have known that its staff and attorneys were not complying with Court orders and the Florida Rules of Civil Procedure.
Despite the multiple violations of court orders and rules regarding discovery, the Court does not find that dismissal of the pleadings is appropriate. Monetary sanctions should assist with future compliance. If not, Defendant is aware that failure to comply with court orders may result in the striking of Defendant’s pleadings and the entry of a default judgment against Defendant. See Feeling Good Clinic, 26 Fla. L. Weekly Supp. 131a; Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) (Gross indifference to court orders will justify dismissal of pleadings.).
SANCTIONS IMPOSED
In accordance with Florida Rule of Civil Procedure 1.380(a) and (b), the Court hereby orders that Defendant shall pay all of Plaintiff’s counsel’s reasonable costs, fees, and interest for litigation of the following hearings and court orders, including, but not limited to, court appearance time, hearing preparation, and drafting of the respective motions to compel and/or for sanctions:
1) February 21, 2018 hearing — Plaintiff’s motion to compel deposition dates;
2) August 29, 2018 hearing — Plaintiff’s motion to compel compliance with Court Order on deposition dates, privilege log, and better answers to production requests;
3) October 31, 2018 — Plaintiff’s September 14, 2018, Motion for Sanctions;
4) The February 21, 2018 Order — GEICO failed to produce its witnesses for deposition within 120 days;
5) The first March 22, 2018 Order — GEICO failed to produce a “PIP payout” log within 20 days;
6) The second March 22, 2018 Order (part 1) — GEICO failed to file a privilege Log;
7) The second March 22, 2018 Order (part 2) — GEICO failed to file better answers to discovery;
8) The August 29, 2018 Order (part 1) — GEICO failed to produce its witnesses for deposition within 30 days; and
9) The August 29, 2018 Order (part 2) — GEICO failed to file amended responses to Plaintiff’s request for production within 10 days.
Within forty-five (45) days of the date of this Order, Plaintiff shall provide to Defendant, and file with the Court, timesheets and supporting affidavits, including an expert’s affidavit, for the fees, costs, and interest incurred for the above-enumerated nine (9) events. Defendant shall also pay Plaintiff’s expert for the expert’s costs and fees. Within forty-five (45) days of receipt of Plaintiff’s timesheets and affidavits, Defendant may respond to the reasonableness of Plaintiff’s timesheets and provide an expert affidavit in support of its position. Based on the evidence provided, the Court may impose costs and fees in favor of Plaintiff without a hearing. Plaintiff’s attorneys shall not obtain a duplicate recovery for these costs and fees under Florida Statute Section 627.428 and Florida Rule of Civil Procedure 1.525. Conversely, Defendant’s costs and fees will not be reduced by the amount awarded to Plaintiff’s attorneys under this Order.
Wherefore, Plaintiff’s June 26, 2018, and September 14, 2018, Motions for Sanctions are granted in part and denied in part.
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1The Court intentionally omits the following allegations from this Order: (1) the filing of the amended answer a day late and (2) an alleged violation of the December 7, 2017, Order regarding failure to produce the Explanation of Benefits. See December 6, 2018, Order Denying Renewed Motion for Sanctions for Failure to Comply with Court Order or for Fraud on the Court. The Court is disregarding these allegations in its consideration of this Order.
2The Court has personal knowledge of Mr. Grigg’s fourteen years of experience as a Florida attorney.
3The Court addressed Plaintiff’s motion to compel production of the Explanation of Benefits in its December 6, 2018, Order and is not addressing it in this Order.
