26 Fla. L. Weekly Supp. 142a
Online Reference: FLWSUPP 2602MOISInsurance — Discovery — Depositions — Failure to attend — Sanctions — Where, consistent with court procedures, medical provider unilaterally set deposition for claims representative with most knowledge after insurer failed to respond to three attempts to coordinate and schedule deposition, insurer never moved for protective order, and claims representative did not appear for deposition, provider is awarded attorney’s fees, costs and monetary sanctions
DR. LAURENCE J. BURCH (a/a/o Marc Moise), Plaintiff, vs. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO-17-007514. April 13, 2018. John D. Fry, Judge. Counsel: Nicholas Marzuk, Lawlor & Associates, Boca Raton, for Plaintiff. Stacia McCray, Miami, for Defendant.
ORDER ENTERING SANCTIONSAGAINST THE DEFENDANT
THIS CAUSE came upon to be heard on Plaintiff’s Motion for Attorneys’ Fees and Costs, and the Court having heard argument of counsel, the Court finds the following:
UNDISPUTED FACTS
1. Both parties agree that the Plaintiff served the Defendant with three requests to coordinate the deposition of the Claims Representative with the Most Knowledge of this Matter; first request was 10/24/17, second request was 11/15/17, and the third request was 01/30/18.
2. Both parties agree that the third request, from 01/30/18, specifically states that “Should we not hear from you in the next five days, we will unilaterally set the deposition for 02/12/18 at 10:00 am to take place at our office.”
3. Both parties agree that Plaintiff properly noticed and served a notice for deposition to the Defendant on 02/05/18 for the deposition to take place on 02/12/18 at 10:00 am at the office of Plaintiff’s counsel.
4. Both parties agree that the Defendant never reached out to the Plaintiff to coordinate this deposition before the deposition was unilaterally set on 02/05/18.
5. Both parties agree that Defendant never filed a Motion for Protective Order relating to the deposition that was set for 02/12/18.
6. Both parties agree that the Claims Representative with the Most Knowledge of the Claim and counsel for the Defendant did not show up for the deposition on 02/12/18.
7. Both parties agree that a Certificate of Non-Appearance was filed with the Court on 02/20/18 for the deposition of 02/12/18.
ANALYSIS
For some time, this Court has encouraged Plaintiffs to move their cases along. The court has gone so far as including in its division procedures language regarding this. “Judge Fry will not authorize motions to be set for hearing ‘to compel dates.’ If the opposing party does not provide reasonable dates within five business days of the request and two attempts to coordinate, you may unilaterally set the deposition. The burden will then be on the opposing party to move for protective order and explain why no dates were provided.”
Plaintiff took reasonable steps to coordinate and mutually schedule the deposition of the Claims Representative with the Most Knowledge of this claim. Three attempts over ninety-eight days gave the Defendant ample opportunity to schedule, communicate, or coordinate the deposition without the need for court intervention or Plaintiff unilaterally setting the deposition. Plaintiff followed this Court’s procedures to the letter and moved forward with the duly noticed and served deposition as scheduled. The Court’s procedures and rules specify that once unilaterally set, the burden is on the opposing party (defendant in this case) to move for protective order — that was not done on this claim.
This Court rules in line with the persuasive authority of PHOENIX EMERGENCY MEDICINE OF BROWARD v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (22 Fla. L. Weekly Supp. 941a). In Phoenix v. State Farm, the Court ordered that when Plaintiff had a Certificate of Non-Appearance for failure to attend a properly noticed deposition, the Defendant was to pay Plaintiff’s counsel the Court Reporter costs associated with the failed deposition; the Court also entered sanctions against the Defendant.
THEREFORE, IT IS ORDEREDAND ADJUDGED AS FOLLOWS:
Plaintiff’s Motion for Attorneys’ Fees and Costs is GRANTED; The Court finds that the Plaintiff is entitled to reasonable fees and costs pursuant to Fla. Stat. 57.105(2) as it relates to this issue, and enters sanctions against the Defendant under the same subsection. The Court will reserve on the actual amount of fees and costs to be awarded and the amount of monetary sanctions to be entered against the Defendant pending a hearing.
