26 Fla. L. Weekly Supp. 46a
Online Reference: FLWSUPP 2601JWALInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Insurer’s failure to respond to requests for discovery, respond to motions to compel discovery, provide deposition dates after cancellation of deposition of its corporate representative and comply with order setting status conference requiring that counsel be fully versed on status of case results in striking of insurer’s pleadings and entry of judgment in favor of medical provider where insurer’s lack of cooperation was willful and contumacious, insurer was involved in failure to cooperate, lack of cooperation has prejudiced provider and created significant problems of judicial administration, and insurer’s inaction in case evinces willful and deliberate decision to abandon case
SOUTH BROWARD HOSPITAL DISTRICT (a/a/o Walker, James 2), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE14016405. March 5, 2018. John D. Fry, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Madeline Torres, The Law Office of George L. Cimballa, III, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONTO STRIKE DEFENDANT’S PLEADINGSAND FINAL JUDGMENT FOR THE PLAINTIFF
THIS CAUSE having come before the Court on February 28, 2017 on the Court’s February 14, 2018 Order Setting Status Conference and Plaintiff’s ore tenus motion to strike Defendant’s pleadings. Pursuant to the Order Setting Status Conference, the parties were required to be “fully versed on the status of this case; more specifically, what has occurred to date; what legal matters are pending before the court; and any known issues requiring judicial assistance or action prior to trial.” The Order Setting Status Conference further provided that “a lack of understanding as to the current status of this case may result in sanctions up to and including dismissal or judgment against a party.”
In response to the Order Setting Status Conference, counsel for Plaintiff advised as to the following proceedings and legal matters that had occurred to date and were pending before the court, requiring judicial assistance:
1. On May 16, 2016, Plaintiff propounded a Request for Admissions, to which Defendant had failed to respond, object or move for an extension of time.
2. Also on May 16, 2016, Plaintiff propounded a First Set of Interrogatories, to which Defendant had failed to respond, object or move for an extension of time.
3. Also on May 16, 2016, Plaintiff propounded a First Request for Production, to which Defendant had failed to respond, object or move for an extension of time.
4. On November 17, 2016 (when Defendant’s responses to the discovery served on May 16, 2016 were 5 months overdue), Plaintiff filed a motion to compel the overdue discovery. Plaintiff certified in that motion that it had complied with Rule 1.380, Fla.R.Civ.P. by attempting to confer in good faith with Defendant, but was unsuccessful.
5. When Defendant failed to respond to the November 17, 2016 motion to compel discovery, Plaintiff filed an amended motion to compel the overdue discovery on December 20, 2016, by which time Defendant’s discovery responses were over 6 months overdue. Defendant similarly failed to respond to the amended motion to compel discovery as well.
6. In May of 2017, the parties mutually coordinated the Rule 1.310(b)(6) deposition of Defendant’s Corporate Representative, scheduling the deposition to occur on July 19, 2017. On July 18, 2017, the day prior to the date of the scheduled deposition, Defendant advised that its Corporate Representative would not be available the following day; that the deposition would need to be cancelled and that Defendant would provide new dates for the deposition.
7. Plaintiff agreed to cancel the July 19, 2017 deposition, based upon Defendant’s representation that new dates would be provided. However, Defendant never provided new dates for the deposition of its Corporate Representative.
When asked why Defendant had failed to respond to the Request for Admissions, Interrogatories and Request for Production served May 16, 2016, why Defendant had failed to respond to motions to compel discovery served in November and December of 2016 and why Defendant had failed to provide deposition dates for the deposition of its Corporate Representative after cancellation of the July 19, 2017 deposition, counsel for Defendant responded that she was “covering for another attorney”, and was not knowledgeable as to those matters. More particularly, Defendant had simply failed to comply with the Court’s Order Setting Status Conference, as counsel appearing on behalf of Defendant was not “fully versed on the status of this case”; was obviously unaware as to “what ha[d] occurred to date; what legal matters are pending before the court; and . . . the issues requiring judicial assistance” about which counsel for Defendant should have been very well aware.
In determining whether the striking of Defendant’s pleadings is an appropriate sanction under the facts and circumstances of this case, this Court considers the following factors enumerated by the Florida Supreme Court in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994):
1. whether the attorney’s disobedience 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 undue expense, loss of evidence, or in some other fashion;
5. whether the attorney offered reasonable justification for noncompliance; and
6. whether the delay created significant problems of judicial administration.
Based upon Defendant’s repeated failure to cooperate with regard to providing discovery, responding to motions to compel and providing deposition dates, the Court specifically makes the following findings of fact:
1. Defendant’s lack of cooperation with regard to providing discovery, responding to motions to compel discovery and providing deposition dates was willful, deliberate and contumacious, and not simply an act of negligence or inexperience on the part of Defendant’s counsel.
2. Defendant was involved in the failure to cooperate, as evidenced by Defendant’s cancellation of the deposition of its Corporate Representative on the day prior to the scheduled date of the deposition, and then failing to provide any alternate deposition dates, 7 months after having promised to do so.
3. Defendant’s failure to provide discovery has prejudiced the Plaintiff, through undue delay and the incurrence of unnecessary expense.
4. Despite this Court’s Order Setting Status Conference, requiring the parties to be fully versed on the status of this case, and that a lack of such understanding may result in sanctions up to and including dismissal or judgment against a party, Counsel for Defendant was unable to offer any reasonable justification for Defendant’s failure to respond to Plaintiff’s May 16, 2016 Request for Admissions, First Set of Interrogatories and First Request for Production.
5. Despite this Court’s Order Setting Status Conference, requiring the parties to be fully versed on the status of this case, and that a lack of such understanding may result in sanctions up to and including dismissal or judgment against a party, Counsel for Defendant was unable to offer any reasonable justification for Defendant’s failure to respond to Plaintiff’s November 17, 2016 motion to compel discovery or Plaintiff’s December 29, 2016 amended motion to compel discovery.
6. Despite this Court’s Order Setting Status Conference, requiring the parties to be fully versed on the status of this case, and that a lack of such understanding may result in sanctions up to and including dismissal or judgment against a party, Counsel for Defendant was unable to offer any reasonable justification for Defendant’s failure to provide deposition dates for the deposition of its Corporate Representative after cancellation of the July 19, 2017 deposition at Defendant’s request.
7. The Court further specifically finds that Defendant’s complete inaction in this case since filing an Answer and Affirmative Defenses in December of 2014 (other than requesting the cancellation of its corporate representative deposition), evidences a willful and deliberate decision to abandon the case.
8. The Court further specifically finds that Defendant’s failure to cooperate in the discovery process has created significant problems of judicial administration.
After having considered each of the above enumerated factors, this Court concludes that a sanction less severe than dismissal with prejudice is not a viable alternative. Accordingly, the Court grants Plaintiff’s ore tenus motion to strike Defendant’s pleadings and enters Final Judgment in favor of the Plaintiff in the amount of $3,188.00 for Personal Injury Protection benefits, together with the costs of this action, and applicable statutory penalty, interest and certified mailing costs as enumerated under Sec. 627.736(10), Fla. Stat., that shall bear interest at the rate of 5.05% a year, for which let execution issue.
The Court reserves jurisdiction to enter an award of reasonable attorneys’ fees and costs.
