26 Fla. L. Weekly Supp. 528a
Online Reference: FLWSUPP 2606VASQInsurance — Personal injury protection — Discovery — Depositions — Objections — Where insurer claims that it has paid PIP benefits by check sent with response to demand letter, insurer’s objections to deposition questions asking deponent to identify persons who placed initials on response letter and wrote notation on letter indicating that check was sent under separate cover constitute bad faith conduct that warrants imposition of monetary sanction — Insurer is ordered to answer questions previously subject to its objections
PRESGAR IMAGING OF CMI NORTH, L.C., (a/a/o Maria Vasquez), Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-04990CONO (70). May 10, 2018. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. John Mollaghan and Stacia McCray, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SANCTIONSFOLLOWING EVIDENTIARY HEARING
THIS CAUSE having been reviewed by the Court on Plaintiff’s Motion for Sanctions and Leave to Conduct Second Deposition of Vicky Horn and Plaintiff’s Additional Motion for Sanctions Concerning the Deposition of Yuliette Rodriguez and for Leave to Conduct Second Deposition of Yuliette Rodriguez, having heard argument of counsel on May 5, 2017, and having held an evidentiary hearing on July 5, 2017, having reviewed the court file, and the Court otherwise being advised in the premises, the Court finds as follows,
The instant lawsuit concerns a dispute over Personal Injury Protection benefits to Plaintiff. The primary dispute appears to concern whether or not Defendant issued payment for these dates of service following Defendant’s receipt of Plaintiff’s demand letter. Defendant sent Plaintiff a demand response, however the letter from Defendant included a handwritten note on the correspondence stating “*check sent under separate cover*”. This letter was initialed by hand “VH” above the typewritten name “Vicky Horn”. Plaintiff argues that neither it nor its attorneys received any further correspondence from Defendant.
To investigate this dispute and Defendant’s position, Plaintiff sought various depositions. Defendant failed to provide Plaintiff with deposition dates within a reasonable time period. After several requests went unanswered, Plaintiff unilaterally set the deposition several months following its initial request consistent with the procedures of this division. A month later, Defendant filed a motion for protective order. Defendant’s motion for protective order only addressed the unilateral setting of the deposition and the location of the proposed location. Defendant’s motion did not seek to limit the scope of the deposition. Although the record remains devoid of any justification for Defendant’s delay in setting the deposition, Plaintiff agreed to reset the date and location of the depositions for Defendant’s convenience.
Plaintiff first took the deposition of Yuliette Rodriguez on February 7, 2017. Ms. Rodriguez confirmed that the Defendant did mail the checks with its Demand Response. At this deposition, it appeared that the Defendant intended to rely on its business practice and procedures, particularly those pertaining to the demand response team, in order to support its position that it did send the checks to Plaintiff. Although this witness stated she had personal knowledge and understanding of these practices and procedures due to her employment history with the company, Defense counsel instructed her client to not answer Plaintiff’s line of questioning pertaining to her knowledge about the demand response team. Further, Defense counsel objected at the deposition to producing documents requested in the Duces Tecum to Plaintiff at the time of the deposition, although stated its willingness to produce at least some of the documents at a later date.
Thereafter, on February 14, 2017, Plaintiff took the deposition of Vicky Horn. John Mollaghan, Esq of Windhaven Insurance Company appeared for the Defendant. Defense Counsel’s objections and instructions for the witness to not respond to Plaintiff’s questions began almost immediately and are too numerous to fully recount here. However, a few highlights from the deposition interruptions are as follows:
· Defense Counsel objected on relevance grounds and instructed Ms. Horn to not respond to Plaintiff’s line of questioning regarding whether she was the individual who initialed “VH” over her typewritten name and if she knew the identity of the individual who wrote “VH” on a document of paramount importance to the dispute in this case.
· Defense Counsel objected with an unspecified privilege claim when Ms. Horn was asked to identify the witness who wrote “*check sent under separate cover*”.
· Defense Counsel objected on relevance and work product privilege grounds when Ms. Horn was requested to identify the person who mailed the checks Defendant claims it mailed.
Plaintiff filed two motions for sanctions concerning Defendant’s conduct at these depositions. Plaintiff’s motion provided numerous citations to authority explaining the lack of procedural propriety of Defendant’s conduct as well as the lack of merit of Defendant’s objections. The Court held a hearing on the motions on May 5, 2017. It became apparent at that hearing that the Court needed to hold an evidentiary hearing on the conduct that occurred at these depositions. Mr. Mollaghan, Esq. was ordered to personally appear. Although the Defendant had ample time to review the authority provided by Plaintiff and to review its conduct through the deposition transcripts, Defendant, through its counsel Mr. Mollaghan, Esq., explained that Defendant would continue to refuse to provide the testimony. Moreover, Defense counsel explained that it wanted to supplement its relevance objection with a work product privilege objection to questions where Plaintiff asked Ms. Horn to identify whether a handwritten “VH” above her typewritten name was done by her hand.
The Court finds that Defendant’s refusal to provide testimony based on pure relevance objections the Vicky Horn deposition was improper conduct. See Fla. R. Civ. P. 1.310(c). Additionally, the Court finds that the relevance objections were legally unsupported. Plaintiff’s questioning was clearly proper and calculated to lead to the discovery of admissible evidence. Further, the Court finds that Defendant’s privilege claims were meritless, dilatory in nature, and a clear attempt at thwarting the truth-seeking function of this Court. Taken by itself, the Defendant’s refusal to answer various questions during Ms. Rodriguez’s deposition might have been subject to a lesser remedial action by this Court. However, this Court must consider the entire course of conduct by Defendant and Defense Counsel in this case.
The Court finds that there were numerous instances of Defendant’s bad faith conduct at the deposition. One particularly egregious example was Defendant’s refusal, on multiple occasions, to identify the individual that wrote “*check sent under separate cover*”. The person is likely to have knowledge as to why the subject checks were not mailed at the time Defendant’s employee Ms. Rodriguez originally claimed it was mailed. The person is also likely to either have knowledge of Defendant’s alleged later-submission of the checks or knowledge of what became of the subject checks. At the hearing, Plaintiff explained that for all it knew, this employee removed the check from the envelope and stuck it in a trash bin.
Defendant’s conduct fully warrants the Court’s imposition of monetary sanctions pursuant to Fla, R. Civ. P. 1.380(a)(2)-(4) and under the inherent authority of this Court. The Court finds Plaintiff is entitled to monetary sanctions in an amount to be affixed at a later evidentiary hearing to be coordinated by the parties.
Defendant is not entitled to put forth a defense and then play “hide the ball” with the truth based on meritless objections. Defendant cannot use frivolous privilege objections as a sword and shield in this case. Defendant’s conduct at the evidentiary hearing and explanation that it would refuse to provide testimony regarding areas of inquiry previously subjected to its frivolous objections indicates that other sanctions are warranted in this case.
Based on the foregoing, the it is hereby ORDERED AND ADJUDGED, Plaintiff’s motion for sanctions is GRANTED as follows:
1. The Court hereby award monetary sanctions to Plaintiff at an amount to be affixed following a further evidentiary hearing that is to be coordinated between the parties.
2. All of Defendant’s objections at the Vicky Horn deposition are overruled. Defendant is ordered to answer Plaintiff’s questions previously subject to Defendant’s objections. The parties shall coordinate an additional deposition within 10 days to occur within 90 days.
3. For purposes of trial, Defendant is prohibited from relying on evidence or testimony regarding the areas for which it refused to provide testimony. Such testimony will be excluded in limine.
