26 Fla. L. Weekly Supp. 131a

Online Reference: FLWSUPP 2602DELAInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer has willfully disregarded twelve court orders, insurer’s staff has been repeatedly sanctioned for violations of orders by various courts, insurer is directly responsible for violations due to its failure to hire sufficient staff, medical provider was prejudiced by delay in production of medical records until first day of trial, there was no adequate justification for noncompliance, and court’s administration of justice has been hampered by noncompliance, motion to strike pleadings is granted and default is entered in favor of provider

FEELING GOOD CLINIC (a/a/o David De La Torre), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-1954 CC 24. April 9, 2018. Diana Gonzalez-Whyte, Judge. Counsel: Ryan Peterson and Erick Evans, for Plaintiff.

REVERSED. FLWSUPP 2710TORR

ORDER GRANTING PLAINTIFF’S MOTION TO STRIKEDEFENDANT’S PLEADINGS FOR REPEATED FAILURETO RESPOND TO COURT ORDERS AND FAILURE TORESPOND TO DISCOVERY FOR OVER FOURYEARS AND FINAL JUDGMENT FOR PLAINTIFF

On March 19th, and March 20th, the Court heard extensive arguments from Counsel for both parties, and held an evidentiary hearing where all parties were allowed to present evidence, argument, and testimony, on Plaintiff’s Motion to Strike Defendant’s Pleadings, and hereby enters the following order:

1. This matter is a lawsuit for the recovery of Personal Injury Protection medical benefits, wherein the Plaintiff, a medical office, has sued GEICO for payments of medical bills. This case presents the Court with an unfortunate situation, because throughout the history of this litigation, GEICO has demonstrated a lack of regard for the rules of procedure, and has demonstrated a history of violating the Court’s orders. A history of some of these violations follows:

2. The Plaintiff originally served the Defendant with interrogatories as well as a request to produce with the complaint, which were dated August 12, 2013. The Defendant answered the complaint on October 17, 2013, but did not timely serve the Plaintiff with any responses to the initial interrogatories or responses to the request to produce.

3. On January 30, 2014, the Court entered court orders compelling the Defendant to respond to this discovery within 20 days. The Defendant ignored the Court’s order.

4. The Plaintiff served the Defendant with supplemental interrogatories and a request to produce related to the demand letter on January 14, 2014. The Defendant did not timely respond to those, either.

5. On May 18, 2014, the Court executed an order on the demand letter interrogatories, compelling a response. The Defendant ignored that Court order as well.

6. On February 3, 2014, the Plaintiff served a Request for Produce regarding the “corporate status” of the Plaintiff. The Defendant failed to timely respond to that.

7. On February 11, 2014, the Plaintiff submitted interrogatories related to the D&A form. The Defendant missed the deadline to respond to that as well.

8. The Plaintiff submitted on February 13, 2014, a request for production related to the “amount in controversy”, and later February 17, 2014 interrogatories and another request to produce related to amounts submitted as well. These were ignored.

9. On March 8, 2014, Judge Ruiz executed five court orders compelling previously submitted discovery. The Defendant ignored those orders as well.

10. On April 11, 2014, Judge Ruiz ordered the Defendant to respond to the interrogatories on the amounts submitted, and the Defendant ignored that court order as well.

11. Having received no response to any previous discovery, the Plaintiff submitted additional discovery on May 25, and May 30, 2014 and June 3, 2014, which the Defendant also ignored. The Defendant violated Court orders entered on July 1, 2014 to compel that discovery. On April 3, 2014, the Plaintiff served a request for production related to necessity. The Defendant ignored that discovery as well.

12. In total, prior to the week before trial, and over the nearly four-year history of this case, the Defendant responded to zero discovery, and violated a total of twelve discovery orders.

13. The Defendant also ignored several additional pieces of discovery submitted by the Plaintiff in 2017.

14. At the Calendar call on March 8, 2018 the Plaintiff informed the Defendant and the Court that Defendant had provided zero responses to any of this discovery, and the Court ordered that the Defendant propound complete responses to all discovery within 5 days from calendar call. The Court orally ordered that this five day period included weekends, and the five day period began from the date of Calendar call. Another similar order was executed on March 13, 2018. At calendar call, the Court set the case for trial to begin on March 19, 2018.

15. For the first time on March 15, 2018, four days before trial, the Defendant filed responses to some of the outstanding discovery as the Court had ordered throughout the four-year history of this case. The responses to the requests to produce claimed that documents were “attached” but the record shows nothing was attached. Furthermore, none of the interrogatory responses are verified under oath or notarized, as required by Fla. R. Civ. P. 1.340.

16. On March 15, 2018, the Plaintiff filed a motion to strike alleging that the Defendant’s pleadings should be stricken, as the Defendant still had not abided by the Court’s orders by not providing documents and not verifying interrogatories.

17. On March 19, 2018, the first day of trial, the Court heard extensive argument on the motion to strike. Defense counsel, Marcs Griggs, argued that the record seemed to demonstrate that the Plaintiff improperly served the 2017 discovery to Progressive’s attorney Andres Pena, who no longer works for GEICO. Ms. Vivian Lasaga was present and also took part in arguments that day for GEICO as well.

18. Mr. Griggs indicated that he was going to file additional evidence and caselaw on this point, and indicated that GEICO was unprepared for the hearing, so the Court rescheduled the hearing to take place on the following day for extra preparation.

19. On March 20, 2018, the Plaintiff provided the Court with evidence that unlike what Mr. Griggs was implying to the Court, GEICO actually had received the 2017 discovery items to its regular service email pursuant to Fla. R. Jud. Adm. 2.516. Furthermore these documents were also forwarded to Ms. Lasaga’s personal email address at GEICO. Ms. Lasaga said nothing to this Court while her co-counsel attempted to lead the court to a mistaken belief that the discovery had not been served on GEICO. The only justification Ms. Lasaga provided for her silence was that her email address had over 2000 emails from the Plaintiff’s law firm (who has hundreds of PIP cases with GEICO’s in house lawyers), and that she must have missed the discovery from 2017.

20. GEICO then submitted live testimony on March 20, 2018 from an attorney from GEICO’s office at the time, who suggested that she prepared the responses to the various discoveries on February 18-26th, 2014, (copies of which were filed with the Court shortly before the hearing), and that her usual practice was to file these with the Court. However these documents were not filed with the Court. On cross examination, this witness admitted that she had no proof of service, and no emails demonstrating service to the Plaintiff or Court, and no records in the Court file demonstrate that these documents were served. The Court does not find the witness credible on this point, as there was no evidence of any service presented, and the Plaintiff’s counsel did not receive the documents. Nor do they appear on the docket. The Court makes a finding that the Defendant did not serve any responses on the Plaintiff on February 18-26th, 2014 — they do not appear on the docket, and there is no proof they were sent.

21. Furthermore, the documents GEICO claimed they created were not verified as required by Fla. R. Civ. P. 1.340, and no documents appear to be attached to the responses to the requests to produce. Even if they had been submitted, GEICO would still have been in violation of the rules of procedure.

22. GEICO’s witness admitted that GEICO’s standard practice is to submit “unverified” interrogatories to get something on the docket within the discovery deadline, and then later to submit verified interrogatories after the adjuster signs them. GEICO’s witness admitted that the interrogatories she prepared were unverified, and it appears as though GEICO did not seek to verify these interrogatories until trial.

23. GEICO’s attorneys argued that while the responses may not have been sent, this was a result of simple neglect, or inadvertence. This Court rejects that argument. After not receiving the responses GEICO thought it submitted, the Plaintiff propounded letters and motions to compel to GEICO via e-mail, claiming not to have received the documents, and then made applications for court orders for all of them. Judge Ruiz signed these court orders and served them on GEICO, and rather than demonstrate compliance, or move to vacate the orders, the Defendant did nothing — they ignored the orders, and did not comply. GEICO does not dispute receipt of those orders. The Court’s makes a finding that the Defendant willfully ignored the Courts’ orders after February 18, 2014. The Defendant offered no explanation as to why it ignored the Court’s orders repeatedly.

24. Finally, GEICO’s witness did not address the discovery that was submitted after February of 2014, and presented no evidence or reason why GEICO failed to respond to all the discovery propounded by the Plaintiff in 2017, and why GEICO failed to respond a Court Order on the docket dated May 18, 2014, as well as two Court Orders on July 1, 2014. GEICO has no excuse, for at least three of the twelve orders, which GEICO does not dispute receiving.

25. Furthermore, even by the first day of trial on March 19, 2018, the Defendant had failed to comply with all the discovery. The Defendant first handed actual paperwork the Plaintiff needed to prove its case the afternoon of March 19, 2018, the first day of trial, more than four years after the Plaintiff had requested it. On that day the Defendant had still failed to file verified interrogatories, which the Defendant only began to file on the second day of trial.

26. In Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983), the Florida Supreme Court held it was proper to strike a party’s pleadings for violating a single discovery order. There, the Florida Supreme Court held that striking of pleadings was justified by “deliberate and contumacious disregard of the court’s authority . . . bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.”

27. In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994), the Florida Supreme Court explained the analysis trial judges should employ in determining whether to strike pleadings as a sanction. In Kozel, the Florida Supreme Court set forth principles for addressing the matter, and some guidelines for determining whether such a sanction is appropriate. These principles include whether the purpose of the Florida Rules of Civil Procedure is being upheld, i.e., “to encourage the orderly movement of litigation.” Kozel, 629 So.2d at 818.

28. The Kozel factors are as follows: 1. Whether the attorney’s conduct 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 undo expense, loss of evidence or some other fashion; 5. Whether the attorney offered reasonable justification for noncompliance; and 6. Whether the delay created significant problems of judicial administration.

29. Here, the Defendant claims it made a mistake and thought it had filed responses to discovery, when it had not for the February, 2014 discovery. The Court does not hold this as a valid excuse to fail to respond to nine court orders. Furthermore, the Defendant has presented no excuse for failing to abide by three other court orders related to discovery filed after February, 2014. The Court finds that there has been a willful disregard to the Court’s orders.

30. The second factor has to deal with whether the attorney has been previously sanctioned. Here, the attorneys are all direct employees of GEICO. GEICO staff counsel have been repeatedly sanctioned for violations of orders by various courts. See Fischetti, P.A. v. GEICO, 25 Fla. L. Weekly Supp. 574b (Fla. 17th Circ. 2017); Myers, P.A. v. GEICO, 25 Fla. L. Weekly Supp. 575a (Fla. 17th Circ. 2017); Clear Vision v. GEICO, 23 Fla. L. Weekly Supp. 649a (Fla. 17th Circ. 2015); My Clear View Windshieled Repair v. GEICO, 23 Fla. L. Weekly Supp. 648b (Fla. 17th Circ. 2015); Hollywood Pain & Rehab, 23 Fla. L. Weekly Supp. 576a (Fla. 17th Circ. 2015); MRI Associates v. GEICO, 21 Fla. L. Weekly Supp. 276a (Fla. 13th Circ. 2015). GEICO’s pleadings have been repeatedly stricken by other courts as well. Xtreme Chiropractic & Rehab, Inc. (a/a/o Oscar Hincapie) v. Geico Ind. Co., 23 Fla. L. Weekly Supp. 964b (Broward Cty. Ct. 2016); Dr. Vicki Lee, Llc d/b/a Chiropractic Solutions of Pensacola (a/a/o Daniel Montemayor) V. Geico General Insurance Company, CONO 16-005089 (70) (Fla. 17th Circ., February 2018).

31. Regarding the third factor, the Court finds that GEICO was directly responsible for these violations because it appears that GEICO either does not hire the staff to adequately handle their caseloads, and/or the claims adjusters necessary to timely file responses to written discovery. Ms. Lasaga candidly told the Court that she had over 2000 emails from the Plaintiff’s law firm alone in her inbox — and this Plaintiff attorney said his firm has hundreds of cases with GEICO. This is unacceptable. However, it is not Ms. Lasaga’s fault. The attorneys who appear before this Court on behalf of GEICO, including Mr. Griggs and Ms. Lasaga are very talented and capable and try their best with what they are given, they are just swamped due to GEICO assigning them too many cases. This is a failure of GEICO In House Counsel as well as its claims department, who have demonstrated a delay in being able to verify interrogatories timely, so their attorneys can comply with the rules of procedure. In Xtreme Chiropractic & Rehab, Inc. (a/a/o Oscar Hincapie) v. Geico Ind. Co., 23 Fla. L. Weekly Supp. 964b (Broward Cty. Ct. 2016)(Lee, J.), the court was presented with a similar fact pattern as the instant case and struck the Defendant’s pleadings and found:

that the misconduct at issue lies at the feet of the Defendant itself, i.e., the client. The attorneys in this case are “in house” counsel for the Defendant. Defendant’s attorneys work directly for the Defendant, and have no clients other than Defendant. See A-l Mobile MRI, Inc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 387d (Broward Cty. Ct. 2005). This Defendant apparently believes the Court’s Orders are not “orders,” but rather “suggestions” to which it may comply at its leisure.

32. Regarding the Fourth Kozel factor, the Plaintiff was surely prejudiced at trial, as the Plaintiff was required to prove medical necessity and relation of the services to the accident, and the medical records and X-Rays the Plaintiff needed to do this were only delivered the first day of trial. The Plaintiff would have been forced to call its expert live instead of having the issue resolved by summary judgment. Furthermore, the Defendant had failed to provide any evidence of when it received the medical bills, as well as the language of its insurance policy and payment logs, which were relevant to the defenses. The Court finds the Plaintiff was prejudiced.

33. Regarding the fifth factor, there was no justification for non-compliance with three of the orders, and there was inadequate justification for the other nine. The Court will not accept parties ignoring Court orders.

34. Finally, the Court’s administration of justice has been hampered. If the Defendant had provided the Plaintiff with these documents prior to trial, many of the issues in the case would have been resolved via summary judgment, resulting in a shorter and more efficient trial and less weary jury members. This includes the medical necessity and relation of the services. The Plaintiff could have prepared a medical expert affidavit and a summary judgment before trial, which would have likely been granted (as the Defendant listed no medical expert), but for the Defendant’s failure to comply with the orders. Furthermore, the failures to comply with discovery required the Court to review and execute various court orders, which took up a significant time of the Court’s staff as well as the Judge.

35. The court finds that there is no less onerous of a sanction to correct this behavior than striking the pleadings, given the scope and number of these violations. For all of these reasons, the Court must GRANT the Plaintiff’s Motion to Strike GEICO’s Pleadings, and hereby enters a default in favor of the Plaintiff.

36. AS SUCH, FINAL JUDGMENT is hereby entered in favor of the Plaintiff in the amount of $6,558.69, plus interest from February 2, 2012, FOR WHICH LET EXECUTION ISSUE FORTHWITH. The Court reserves jurisdiction for any post-trial motions filed pursuant to the Florida Rules of Civil Procedure.