26 Fla. L. Weekly Supp. 325a
Online Reference: FLWSUPP 2604DEMEInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer has repeatedly failed to comply with discovery obligations and has disobeyed multiple court orders, insurer’s pleadings are stricken and final judgment is entered in favor of medical provider
CENTRAL BROWARD THERAPY CENTER (as assignee of Ducille Demetri), Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 13-014497. May 24, 2018. John D. Fry, Judge. Counsel: Tara Kopp, West Palm Beach, for Plaintiff. Fiorella Castagnola de Blaikie, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION TO STRIKE DEFENDANTS PLEADINGSAND ENTER JUDGMENT IN FAVOR OF THE PLAINTIFF
THIS MATTER having come before the Court on March 29, 2018, on Plaintiff’s Motion to Strike Defendant’s Pleadings and Enter Final Judgment in Favor of the Plaintiff and the Court having reviewed the Motion, heard argument of counsel, the Court having made a thorough review of the records and the relevant legal authorities and the Court being otherwise fully advised in the premises, finds as follows:FINDINGS OF FACT
This case arises out of an automobile accident that occurred on February 5, 2013. At the time of the accident, the insured, Demetri Ducille, was insured under an automobile policy with the Defendant, WINDHAVEN INSURANCE COMPANY, which provided $10,000.00 in Personal Injury Protection (“PIP”) benefits. As a result of the injuries sustained in the automobile accident, Demetri Ducille, sought treatment with the Plaintiff, from February 6, 2013 through July 31, 2013, pursuant to a written and/or equitable assignment of benefits.
Plaintiff timely submitted the bills to the Defendant seeking reimbursement of PIP benefits for the treatment rendered. Thereafter, on November 12, 2013, the Plaintiff sent the Defendant a pre-suit Demand Letter pursuant to F.S. 627.736(10), seeking an additional amount owed as reimbursement of PIP benefits.
On August 2, 2013, Plaintiff filed a Complaint alleging breach of contract based upon Defendant’s failure to reimburse Plaintiff the full amount owed in PIP benefits for treatment rendered. The Defendant filed an Answer alleging as an affirmative defense, “that Windhaven Insurance Company is not the proper defendant to this suit. Plaintiff is barred from recovery as the Assignor, DEMETRI DUCILLE was not covered under a contract for insurance with Windhaven Insurance Company at the time of the alleged motor vehicle accident. Therefore, Windhaven Insurance Company is not responsible for payment of Plaintiff’s bills.”
On January 15, 2018, this case was transferred from South Broward to the Broward North Satellite, division 70 with the Honorable John D. Fry, for an expedited resolution pursuant to the Administrative Order No. 2017-79-CO.
On March 22, 2018, Plaintiff filed its Motion to Strike Defendant’s Pleadings and Enter Final Judgment in Favor of the Plaintiff. This Motion was brought to the Court in order to call attention to a plethora of repeated failures by the Defendant to comply with its discovery obligations and disobeying multiple Court Orders willfully and contumaciously are of which is amply supported by the record and set forth more specifically as follows:
On August 2, 2013, Plaintiff served its initial discovery including Request for Production, Request for Admissions and Interrogatories all of which was served along with Plaintiff’s Complaint.
On May 23, 2014, Plaintiff made a good faith attempt to obtain Defendant’s overdue discovery responses to Plaintiff’s Request to Produce and Interrogatories all of which were eight months overdue.
Thereafter, due to Defendant’s repeated failure to file and serve its responses to Plaintiff’s Request to Produce and Interrogatories, Plaintiff was forced to file its Motion to Compel Discovery Responses and for Sanctions on September 18, 2014.
On May 18, 2015, a hearing was scheduled on Plaintiff’s Motion to Compel Discovery Responses and for Sanctions to take place on September 11, 2015.
Seven months later, on September 8, 2015, Defendant filed its responses to Plaintiff’s Request for Production and Interrogatories, 4 days before the scheduled hearing.
On August 22, 2016, and again on September 23, 2016, Plaintiff requested, via written correspondence, available dates to conduct the deposition of Defendant’s Corporate Representative. Defendant was completely unresponsive and/or otherwise failed to provide Plaintiff with any available dates for the taking of the requested deposition.
On October 20, 2016, Plaintiff filed yet another Motion to Compel Deposition for Defendants Corporate Representative due to Defendant’s delaying the litigation of the case at hand.
On December 18, 2017, after numerous attempts made by Plaintiff to schedule the Deposition of Defendant’s Corporate Representative, the Defendant provided Plaintiff with its availability of one day on September 4, 2018 for the taking of the deposition. The Defendant advised on December 8, 2017, that its Corporate Representative would only be available for a deposition on September 4, 2018, nine months away.
On January 15, 2018, pursuant to this Court’s Administrative Order No. 2017-79-CO, this case was transferred to Division 70, Judge John D. Fry.
On February 6, 2018, Plaintiff filed its Supplemental Request to Produce, Supplemental Request for Admissions and Supplemental Interrogatories to Defendant. Defendant once again failed to comply with another deadline and did not file its responses to Plaintiff’s Supplemental Request to Produce, Supplemental Request for Admissions and Supplemental Interrogatories or seek an extension by the date said responses were due.
On March 9, 2018, Plaintiff filed its Ex-Parte Motion to Compel Response to Supplemental Plaintiff’s Request for Admission, Supplemental Request to Produce and Supplemental Interrogatories and for Sanctions.
On March 9, 2018, Judge Fry entered an Order on Plaintiff’s Ex-Parte Motion to Compel Response to Supplemental Plaintiff’s Request for Admissions, Supplemental Request to Produce and Supplemental Interrogatories and for Sanctions, thereby ordering the Defendant to file its responses to the supplemental discovery within 10 days from the Order dated March 9, 2018.
Defendant failed to file and/or serve its responses to Plaintiff’s Supplemental Discovery and Defendant was once again in violation of this Court’s Order entered on March 9, 2018.
On March 20, 2018, Plaintiff filed its Motion to Compel Defendant’s Compliance with the Court’s Ex-Parte Order entered on March 9, 2018 and for Sanctions.
On February 7, 2018, a Case Status Conference took place with Judge Fry, where two (2) Orders were issued by the Court as follows:
The first Order entered was an Order on a Status Conference, specifically ordering the “Deposition of Defendant’s Corporate Representative to be re-scheduled and coordinated within 15 days to occur within 45 days.”
The second Order was a Uniform Order Setting Pretrial Deadlines and Related Requirements, wherein Pretrial Conference was scheduled for May 9, 2018, Calendar Call scheduled for June 13, 2018 and Trial Period scheduled for July 30, 2018.
The Uniform Order Setting Pretrial Deadlines and Related Requirements stipulates to filing deadlines, one of which was the filing of a Motion for Summary Judgment and the filing of the Joint Pretrial Stipulation.
Pursuant to the Uniform Order Setting Pretrial Deadlines and Related Requirements, the last day for a Motion for Summary Judgement to be filed was April 9, 2018 and the last day to file the Joint Pretrial Stipulation is May 18, 2018, (100 days from the date of the Uniform Order).
Defendant failed to comply with the Status Conference Order dated February 7, 2018, and as a result, Plaintiff was forced to unilaterally file its Notice of Taking Deposition of Defendant’s Corporate Representative, due to Defendant’s lack of cooperation in scheduling the same, to take place on March 21, 2018.
On March 19, 2018, at 5:43 pm, only one day prior to Defendant’s Corporate Representative’s scheduled deposition, Defendant filed its Motion for Protective Order as to the Deposition of its Corporate Representative and, thereafter Defendant sent an e-mail to the Plaintiff advising that, “the deposition needs to be reset because the adjuster is unavailable due to a personal issue and will be out the remainder of the week.”
Pursuant to the Status Conference Order dated February 7, 2018, the deposition of Defendant’s Corporate Representative was required to occur by March 24, 2018 and was violated solely due to Defendant’s conduct.
Defendant failed to appear and at the Court Ordered Deposition of Defendant’s Corporate Representative scheduled for March 21, 2018 at 2:00pm and the Plaintiff was forced to take a Certificate of Non Appearance.
Defendant also failed to Comply with the Uniform Order Setting Pretrial Deadlines and Related Requirements, by not filing its Expert Witness List that was due by March 19, 2018, pursuant to this Order.
CASE LAW
In, Poling v. Palm Coast Abstract and Title, 29 Fla. L. Weekly D2089b (5th DCA, Sept. 17, 2004), the 5th District Court of Appeal held that there was no abuse of discretion in granting Plaintiff’s motion to strike defendant’s pleadings for failure to comply with court orders, failure to appear for trial, and failure to attend mediation. In that case, the Appellant received notice of the mediation order and notice of trial, yet they elected to attend neither. Even after being notified by the mediator that they needed to contact the trial court and the opposing party to reschedule mediation before trial, and they did not comply. Id.
The 5th District Court of Appeal in, Poling v. Palm Coast Abstract and Title, cited to Arango v. Alvarez, 585 So.2d 1131 (Fla. 3d DCA 1991) where the 3rd District Court of Appeal stated the following:
“We find that it was not an abuse of the trial court’s discretion to interpret the defendants failure to appear at the calendar call, after the defendants had already established a pattern of disobeying and/or ignoring the earlier orders entered by the court, as being willful and intentional, thereby justifying the entry of a default.” Id.
In Sukonik v. Wallack, 40 Fla. L. Weekly D2339a (3rd DCA Oct. 14, 2015) the 3rd District Court of Appeal held that the trial court properly granted the motion to dismiss or strike pleadings for failure to comply with discovery requests and for disobeying court orders, because the record amply supports the trial court’s findings that the repeated failure to comply with discovery obligations and court orders was a willful, deliberate, and contumacious disregard of trial courts authority.
LEGAL FINDINGS
In this case, after a careful review of the records and hearing the argument of counsels this Court made the following findings:
This case is 1,696 days old and has been transferred to Judge Fry because of the age of the case. This case has been given direct and specific attention by the judiciary on multiple occasions because of the Defendant’s failure to comply. This case was transferred to this division with approximately 4,600 other cases because the three primary participants in this process, that being Plaintiff, Defendant, and the Judiciary have all combined to not resolve this matter in a timely manner.
This Court has clearly established with all parties that the rules will be meticulously applied. This Court has routinely forgiven what could be a single, willful, and intentional disregard of the rules of civil procedure in its conduct. This Court has all the hearings with all the attorneys and warned them that the failure to comply to the rules will result in sanctions. This Court specifically had a status conference on this case, where it executed specific orders advising the parties to do certain things. Based upon Plaintiff’s argument, the record, and Defense counsel’s response, none of the things this Court has ordered on a 1,696 day old case has occurred.
Windhaven has a variable plethora of different corporate representatives should they choose to do so. Windhaven made a conscious decision within their right to designate who they felt would be the corporate representative, that being the adjuster on this case. There comes a time where the Court is bound and obligated for the effective administration of justice against parties and this case is replete with literally the advanced judicial studies example of a situation that a court should sanction the party with a striking of the pleadings.
The Court consciously and intentionally, for appellate purposes, after a thorough review of the file, after the record not being disputed, after judicial intervention on at least four different occasions with a specific instruction what the sanctions would be if they weren’t complied with, finds that the Defendant has done nothing and therefore the Defendant’s pleadings will be stricken and Final Judgment will be entered in favor of the Plaintiff.
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Strike Defendant’s Pleadings and Enter Judgment in Favor of the Plaintiff is hereby GRANTED. This Court retains jurisdiction to determine Plaintiff’s entitlement to reasonable attorney’s fees and costs. As this Order disposes of the remaining issues in this case, the Plaintiff shall submit a proposed Final Judgement to the Court.
