26 Fla. L. Weekly Supp. 21a
Online Reference: FLWSUPP 2601FRAZInsurance — Property — Discovery — Failure to comply — Sanctions — Monetary sanction equal to amount claimed by insureds in damages for alleged water loss is imposed on insureds’ counsel and his law firm jointly and severally and case is dismissed with prejudice as sanction for misconduct where insureds did not provide notice of loss until forty days after alleged loss; allegedly failed parts were discarded, thousands of dollars of repairs were allegedly performed before loss was reported, and no photographs or videotapes were taken of loss; insureds did not provide sworn proof of loss; neither insureds, their counsel nor their public adjuster appeared for scheduled examinations under oath; insureds did not respond to discovery for over five months and then provided response that was grossly deficient, mendacious and unverified; and insureds failed to participate in first scheduled depositions, and their counsel engaged in obstructionist conduct throughout second depositions ordered by court
OBRIAN FRAZER and LATOYA BYFIELD, Plaintiffs, v. AVATAR PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 16-015798 (14). March 14, 2018. Carlos A. Rodriguez, Judge.
ORDER GRANTING DEFENDANTS “AMENDED MOTIONTO DISMISS WITH PREJUDICE BASED ON PATTERNOF MISCONDUCT,” AND, IMPOSING ADDITIONALSANCTIONS AGAINST PLAINTIFFS’ LAWYERS.
THIS CAUSE came before the Court on February 13, 2018, upon the Defendant’s “Amended Motion to Dismiss with Prejudice Based on Pattern of Misconduct” (the “Motion”), served February 8, 2018, and the Court having reviewed the Motion and exhibits, entertained the arguments of counsel, personally observed counsel’s behavior, and, being otherwise advised in the premises, hereby makes the following findings of fact and law.
1. Plaintiffs assert to have had some kind of “water loss” in a bathroom.
2. The policy particularly requires Plaintiffs to supply Defendant “prompt” notice of any loss.
3. There is no dispute that Plaintiffs did not comply. Indeed, they admit that they waited forty days to first tell Defendant anything. By the time Plaintiffs did tell Defendant about the asserted loss, the allegedly failed parts had been discarded without any photographs or videotapes having been taken of the same. Plus, Plaintiffs contend to have done thousands of dollars in work, again before telling Defendant anything.
4. Defendant agreed to try and investigate, subject to a reservation of rights, and the protections of 627.426(1), Florida Statutes.1
5. To that end, pursuant to the terms of the policy, Defendant requested a sworn proof of loss, and, scheduled examinations under oath for a date and time certain, among other things.
6. The sworn proof of loss was due within the sixty days following Defendant’s request. Plaintiffs admit that they did not comply.
7. Also, on the date of the scheduled examinations under oath, Plaintiffs and their lawyers, The Strems Law Firm, P.A. (“Strems”), did not appear. Neither did Plaintiffs’ public adjuster or anyone else Defendant asked Plaintiffs to produce. From the record evidence, there is no question that Strems, Plaintiffs’ public adjuster — Contender Claims Consultants, Inc. (“Contender), and the other company hired by Plaintiffs, All Insurance Restoration Services, Inc. (“AIRS”), have a multitude of claims together. It is equally clear that Strems, Contender and AIRS routinely fail to appear for scheduled examinations under oath, as well as depositions.
8. Citing a failure to comply with the policy’s requirements. Defendant denied the claim in its entirety.
9. On September 8, 2016, Plaintiffs served the lawsuit upon Defendant, by and through Strems.
10. The lawsuit accused Defendant of breaching the policy by denying the claim.
11. On September 30, 2016, Defendant’s attorney wrote Strems and requested the depositions of Plaintiffs, Contender, and, AIRS. The letter concluded:
Please contact my office to coordinate mutually convenient dates and times. If you do not, by 4:00 p.m. on October 6, 2016, I will presume you do not want to participate in the coordination process and will set the depositions for the date and time most convenient to Avatar Property and Casualty Insurance Company. Still, I hope to hear from you.
12. Plaintiffs and Strems ignored the letter entirely.
13. On December 20, 2016, Defendant propounded two sets of interrogatories, two sets of requests for the production of documents, and, requests for admission.
14. The same day, Defendant set Plaintiffs, Contender, and AIRS for deposition, three months out.
15. On January 19, 2017, the very last day to respond, Plaintiffs, by and through Strems, filed a motion for extension of time to respond to Defendant’s discovery. The five sentence motion appears to be a form. Defendant maintains the same, and that such is filed by Strems as its standard operating procedure. Strems does not deny these assertions, and, there is nothing before the Court to suggest otherwise.
16. Plaintiffs made no attempt to reach an agreement with Defendant prior to filing the motion. Also, they made no attempt to present the motion to the Court for consideration. Again, this appears to be Strems’ standard operating procedure, and Strems does not maintain otherwise.
17. Plaintiffs’ motion asked for a thirty day extension of time to respond to Defendant’s discovery requests.
18. On February 2, 2017, after waiting two weeks without Plaintiffs supplying any discovery responses or making any attempt to present the motion for extension to the Court, Defendant’s attorney wrote Strems and said:
Dear Attorney Saldamando:
On January 19, 2017, at 11:23 a.m., and, 11:25 a.m., you served “Plaintiffs’ Motion for Extension of Time to Respond to Defendant’s Discovery,” and, “Plaintiffs’ [sic] Motion for Extension of Time to Respond to Defendant’s Discovery,” respectively.2 Prior to serving the motions, you made no attempt, at all, to contact me. This is even more “disappointing” in light of what happened in other cases we have together. There, you served the same motion, and, like here, made no attempt, at all, to contact me.
In any event, the motions request thirty days for Plaintiff(s) to respond to the discovery requests by Avatar Property and Casualty Insurance Company (“Avatar”).
Avatar will agree to give Plaintiff(s) a thirty day extension until February 18, 2017, to respond.
. . .
(Emphasis added)
19. Plaintiffs and Strems ignored the letter entirely.
20. February 18, 2017, the agreed deadline for Plaintiffs to respond to Defendant’s discovery requests, came, and it went.
21. All the same, Plaintiffs, and Strems, filed nothing. Thus, Plaintiffs waived most objections by operation of law. And, all requests for admission were deemed admitted, again, by operation of law.
22. Three and a half months after Defendant propounded its discovery requests, still, Plaintiffs and Strems had not supplied any discovery responses.
23. To conduct Plaintiffs’ depositions, Defendant rented office space, hired an official court reporter, hired an official videographer, and, prepared. This, obviously, occurred at considerable expense. Defendant not only noticed Plaintiffs for deposition, it served each of them with subpoenas as well.
24. On March 30, 2017, Plaintiff Frazer appeared for deposition, but left pursuant to the instructions of Strems without giving any testimony.
25. Neither Plaintiff Byfield, nor Strems, appeared for the former’s deposition.
26. Defendant then moved for orders to show cause.
27. Despite likewise being served with subpoenas, AIRS failed to appear for its depositions.
28. Again, Defendant moved for orders to show cause.
29. Also on March 30, 2017, Defendant served a “Motion to Compel Responses to Written Discovery Requests, and, for Award of all Attorney Fees and Costs Unnecessarily Incurred, Pursuant to Florida Rule of Civil Procedure 1.380(a)(4).” With exhibits, it was 168 pages. The motion detailed all of the happenings in the case, and in other cases involving Strems; asked for an Order compelling discovery responses; and, requested an award of all expenses.
30. Still, Plaintiffs and Strems supplied no discovery responses, whatsoever.
31. On April 10, 2017, Defendant filed a motion to compel or exclude Plaintiffs’ representatives. It totaled, with exhibits, 120 pages. The motion again went over the events in this case, and the other cases involving Strems.
32. Still, Plaintiffs and Strems did nothing.
33. On May 24, 2017, Plaintiffs served three things, by and through Strems. They served “responses” to Defendant’s first set of interrogatories, to Defendant’s second set of interrogatories, and, to Defendant’s requests for admission. This was over five months after Defendant propounded the discovery requests, more than four months after the deadline to respond mandated by the Florida Rules of Civil Procedure, and, over three months after the extended deadline Strems and Plaintiffs granted themselves.
34. Moreover, the “responses” were both grossly deficient and mendacious.
35. In addition, the “responses” to both sets of Defendant’s interrogatories were not verified as required.
36. Moreover, at that point, over seven and a half months after Defendant propounded the discovery requests, more than six and a half months after the deadline to respond mandated by the Florida Rules of Civil Procedure, and, over five and a half months after the extended deadline Strems and Plaintiffs granted themselves, still, Plaintiffs and Strems had not served any responses to Defendant’s first set of requests for the production of documents, or, to Avatar’s second set of requests for the production of documents.
37. On August 11, 2017, Defendant filed its original motion to dismiss with prejudice based on misconduct. It totaled, with exhibits, 340 pages. The motion again went over the events in this case, and the cases involving Strems. It requested dismissal, with prejudice.
38. Still, Plaintiffs and Strems did nothing.
39. Instead, on August 30, 2017, Plaintiffs and Strems filed a “Notice for Trial” and requested that the case be set for jury trial. Not only was the case not ready for trial, they did not confer with Defendant as required by the Court’s well-established procedures, and scheduling Order.
40. The same day, in reliance on the representations made by Plaintiffs and Strems, not knowing the actual state of events, the Court issued a Uniform Trial Order setting the case for jury trial.
41. On September 25, 2017, Plaintiffs supplied “responses” to Defendant’s two sets of requests for the production of documents. This was over nine months after Defendant propounded the discovery requests, more than eight months after the deadline to respond mandated by the Florida Rules of Civil Procedure, and, over seven months after the extended deadline Strems and Plaintiffs granted themselves.
42. As with Plaintiffs’ other discovery “responses,” these “responses” too were grossly deficient and mendacious.
43. And, still, Plaintiffs had never verified their “responses” to either set of Defendant’s interrogatories.
44. On November 15, 2017, instead of sitting for deposition, providing proper responses to Defendant’s written discovery requests, or even verifying their “responses” to Defendant’s two sets of interrogatories, Plaintiffs served a set of requests for production upon Defendant.
45. The same day, Plaintiffs first disclosed a contractor as an expert. In so doing, Plaintiffs and Strems said “deposition dates available upon request.”
46. On November 16, 2017, again, instead of sitting for deposition, providing proper responses to Defendant’s written discovery requests, or even verifying their “responses” to Defendant’s two sets of interrogatories, Plaintiffs propounded a set of interrogatories upon Defendant.
47. On November 22, 2017, as invited by Plaintiffs and Strems, Defendant’s attorney wrote Strems and said:
Avatar Property and Casualty Insurance Company hereby respectfully requests the deposition of Walter Lisa, P.E.
Please contact my office to coordinate a mutually convenient date and time. If you do not, by 4:00 p.m. on November 30, 2016, I will presume you do not want to participate in the coordination process and will set the deposition for the date and time most convenient to Avatar Property and Casualty Insurance Company. Still, I hope to hear from you.
48. Plaintiffs and Streets ignored this letter as well, and never responded.
49. On December 14, 2017, Plaintiffs and Strems moved for sanctions against Defendant, and its attorney personally, under section 57.105, Florida Statutes, for having the audacity to move for dismissal based on Plaintiffs’ and Strems’ misconduct, and, according to them, “wasting this Court’s time.”
50. On February 5, 2018, the Court held the Calendar Call. Defendant advised that the case was not ready for trial, and noted all of the outstanding motions. Somehow, Strems maintained that the case was ready to be tried. The Court told the parties to come back on February 13, 2018, and all pending motions would be heard. Then, if the case survived the pending motion, the case would be tried before a jury.
51. On February 8, 2018, Defendant filed the Motion, updating occurrences since the filing of the original motion, to include a dozen sanctions Orders in cases involving Strems.
52. On February 13, 2018, the Court instructed Defendant to depose Plaintiffs immediately, in the courtroom. The Court then went to Chambers and told the parties to be ready to present their respective positions at a later specified time; with Defendant arguing why the case should be dismissed with prejudice, and Plaintiffs arguing why it should not.
53. Notably, lead counsel for Strems is Gregory Saldamando. Just ninety days prior, Mr. Saldamando was admonished by another Circuit Court Judge for his obstructionist behavior in an examination under oath.
I’m very familiar with that, and I’m also very familiar with who was making themselves available and who wasn’t. I think the record speaks very clearly for that. I’m interested in you going straight to the deposition because these examinations under oath must have some meaning like in deposition. . . And I don’t think I’ve ever seen one where a lawyer basically tells their witness particularly under these circumstances repeatedly, don’t answer a question.
. . .
I’m talking about what I see is repeatedly a lawyer going, don’t answer that. Don’t answer that. Don’t answer that. . . . No indication of privilege, no indication of a basis, just don’t give them information. Tell me about that.
. . .
How does that justify a lawyer doing what was done there? Don’t answer. Don’t answer. Don’t answer.
. . .
When you have that environment, you’re telling me that somehow or other that is complying with some obligation to basically from the standpoint of the Court completely obstruct the gathering of information?
. . .
The conduct of counsel in this case may be the subject of other examination but it’s not an issue that’s going to be in front of a jury.
. . .
54. In the Motion, Defendant block-quoted the admonishment and attached the transcript as an exhibit.
55. All the same, that court’s admonishments had no effect.
56. During the deposition of Plaintiff Byfield, Mr. Saldamando repeatedly instructed her not to answer proper questions with no basis at all. Then, with a question pending, and unanswered, Mr. Saldamando unilaterally declared a break, over the strenuous objection of Defendant’s attorney, removed Plaintiff Byfield from the room, and, spent some twenty minutes or so discussing the case with her, again, with a question pending.
57. When Defendant attempted to depose Plaintiff Frazer, Mr. Saldamando would not allow the deposition to proceed unless Defendant agreed to certain stipulations, which were not only impermissible, they were in direct contradiction to the Court’s directives.
58. Defendant alerted the Court to Mr. Saldamando’s transgressions, and, after hearing from both sides, the Court announced that it was sanctioning Mr. Saldamando for his behavior, with the specific sanctions to be set forth at a later time.
59. Defendant then continued the deposition of Plaintiff Frazer up until the time specified by the Court.
60. The Court reconvened and heard the Motion.
61. The representations made to the Court by Mr. Saldamando were not candid. For instance, he represented that after Defendant scheduled the examinations under oath, he personally wrote Avatar’s attorney, advised that he was not available on the scheduled date, asked to reschedule the examinations under oath for another date, and supplied alternative dates, Defendant’s attorney ignored the discourse and the request, Defendant went forward with the examinations under oath knowing Mr. Saldamando was not available, and then, Defendant denied the claim for, among other things, Plaintiffs’ failure to attend the scheduled examinations under oath. Significantly, while making this representation to the Court, Mr. Saldamando held up what he contended was his pre-examination under oath request to reschedule. As Defendant’s attorney promptly pointed out, Mr. Saldamando’s representations to the Court were not true. Prior to the noticed examinations under oath, Mr. Saldamando never wrote Defendant. It was not until exactly ten days after the scheduled examinations under oath, and Plaintiffs’ failure to appear, that he wrote Defendant. In addition, Mr. Saldamando represented to the Court that Plaintiffs actually supplied Avatar with pictures of the supposedly failed plumbing, before any replacement, and of the allegedly failed parts, holding up what he asserted were those photographs. In truth, Plaintiffs never provided any such thing. Notwithstanding his representations, the pictures held up to the Court, in what only can be an intentional attempt to mislead, did not show the supposedly failed plumbing, or, the allegedly failed parts. They were photographs that were taken some two months after the claimed loss, after the supposedly failed plumbing had been repaired, after the purportedly problematic parts allegedly had been replaced and discarded without ever being photographed or videotaped, after all the water ostensibly had been removed, and, after thousands and thousands of dollars in work had been performed.
62. The Motion must be considered in conjunction with the factors set forth by the Florida Supreme Court in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).
63. For the reasons set forth herein and on the transcribed record, the Court finds that the Kozel factors have been satisfied, and the circumstances of this cause warrant dismissal of the action with prejudice. Thus, the Motion is GRANTED.
64. The Court would note that the conduct of Strems, and Mr. Saldamando, here is no aberration. As established by the exhibits to the defense motions, in addition to the admonishment block-quoted above. Strems has been sanctioned for misconduct in more than two dozen cases. Eleven different cases filed by Strems have been dismissed based on its misconduct, ten with prejudice.
65. As stated in open Court February 13, 2018, and reiterated herein an additional sanction imposed by the Court was a monetary sanction. In the lawsuit, Plaintiffs claimed that they were owed $22,877.02 in contractual damages. As a particular, specific sanction, the evidence showed that the discovery violations, specifically repeatedly, improperly instructing the Plaintiff not to answer questions, were exclusively caused by Plaintiff’s counsel and resulted and continues to result in prejudice to Defendant who has been effectively thwarted in obtaining sworn testimony about the nature of the claim. Per FL.R.Civ.P., Rule 1.380(a)(2) and Rule 1.380(d), and Per Rule 1.380(d) wherein on the eve of trial the Court surrendered its’ courtroom to the parties and ordered that Defense counsel be allowed to depose Plaintiff in the courtroom to determine the extent of prejudice they had suffered as a result of all the previous nondisclosure by Plaintiffs counsel and counsel repeatedly improperly instructed his client not to answer, as a sanction to enforce its’ discovery order, monetary sanctions were imposed. As stated in open court, Strems, and Mr. Saldamando, are ordered to pay Plaintiffs, $22,877.02 with joint and several liability. Payment to Plaintiffs shall be made in full within 60 days of this order.
66. The Court hereby finds entitlement to further sanctions because Plaintiff has acted in bad faith as follows: 1) completely failing to respond to written discovery to prejudice the defense while at the same time unilaterally setting the case for trial; 2) intentionally, willfully and contumaciously violating the Court’s Order on Division Procedures, page 10, paragraph 11(a) by unilaterally setting the case for trial without consulting opposing counsel or court permission; 3) misrepresenting to the Court in open court the facts of this case, specifically, pretending that Plaintiff’s counsel had not just failed to show up for scheduled EUOs and depositions when required to bring the Plaintiff or witness and had contacted the defense in advance, when in fact, no such notice was given. Plaintiff’s counsel’s conduct based on the record and testimony before the Court the day of trial and deposition February 13, 2018, shows counsel has acted throughout in Bad faith with gross indifference to the Court ordered procedures, the Florida Rules of Civil Procedure, specifically, Rule 1.280 and the authority of the Court. The conduct is deliberate and contumacious. See, Mack v. National Constructors Inc., 666 So.2d 244 (Fla. 3rd DCA 1996) [21 Fla. L. Weekly D147a]. Throughout this case and per the orders filed, in many other cases, the conduct is such that it cannot be said to be an accident or isolated conduct but has been sanctioned previously, the client may or may not be involved but the conduct appears attorney driven, the prejudice to the defense has been extreme, rendering them totally unable to defend the case, there has been no offered justification, other than an obvious, and observed by the Court in the courtroom, animosity toward the defense and finally, the administration of justice has been brought to a halt beyond just the discovery issue because this case improperly appeared on the trial docket, bumped other ready cases and wasted time.3
67. As is the pattern in this case, per the Court’s instructions, the Plaintiff was directed to send the defense any objections to findings made by the Court at the hearing granting the sanction of dismissal and the monetary sanction of $22,877.02. A proposed order was sent by the defense to the Plaintiffs counsel and said proposed order received by the Court February 23, 2018. Eight days after receipt of an order and now 29 days after the hearing, no objection to the Court’s findings at the hearing or to the proposed order nor any opposition to sanctions has been flied by Plaintiffs counsel.
IT IS HEREBY ORDERED AND ADJUDGED that Defendant’s filed Amended Motion to Dismiss With Prejudice Based on a Pattern of Misconduct is GRANTED AND THE CASE DISMISSED WITH PREJUDICE. As an additional monetary sanction, The Strems Law Firm, P.A., and Mr. Gregory Saldamando, are ordered to pay Plaintiffs a total of $ 22,877.02. Payment to Plaintiffs shall be made in full within 60 days of this order. The Court reserves jurisdiction to determine the type and amount of further sanctions, including costs and attorney fees or other appropriate sanction. See, e.g., Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) [27 Fla. L. Weekly S175b]; and, Patsy v. Patsy, 666 So. 2d 1045 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D302b].
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1In essence, this provision allows insurers to attempt to investigate, adjust and settle claims without waiving any of their contractual or legal rights. See, e.g., Rodrigo v. State Farm Florida Ins. Co., 144 So. 3d 690 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1760a].
2Plaintiffs made two claims for asserted water losses under similar circumstances. As noted, the asserted bathroom loss is the subject of the instant lawsuit. An asserted kitchen loss is the subject of another lawsuit.
3Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993); Bank of NY Mellon v. Sandhill, 202 So.3d 944 (Fla.5th DCA 2016) [42 Fla. L. Weekly D145d].
