27 Fla. L. Weekly Supp. 548a
Online Reference: FLWSUPP 2706SURIInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Insurer’s pleadings are stricken and default judgment is entered in favor of medical provider where insurer violated numerous discovery orders, was placed on notice of seriousness of violations by numerous motions for sanctions, was directly responsible for violations by in-house counsel, and has offered no reason for violations; provider was prejudiced by loss of evidence and loss of right to pursue other parties who were identified in belated discovery after statute of limitations for action against them had expired; and violations have hampered administration of justice
DR. RANDALL THOMPSON CHIROPRACTIC CENTER (a/a/o Thalia Surita), Plaintiff, v. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-2506 SP 24. March 4, 2019. Diana Gonzalez-Whyte, Judge.
ORDER GRANTING PLAINTIFF’S MOTIONTO STRIKE DEFENDANT’S PLEADINGS
On February 25th, 2019, the Court heard arguments from Counsel for both parties, and held an evidentiary hearing on Plaintiff’s Motion to Strike Defendant’s Pleadings, and hereby enters the following order:
1. In this matter, the Plaintiff, a medical office, has sued Ocean Harbor for payments of medical bills under a PIP insurance policy. This was a basic coverage dispute. A patient was in a car accident on May 31, 2013. She came to the Plaintiff’s office, and allegedly told the Plaintiff she was insured with Ocean Harbor. The Plaintiff claims Ocean Harbor cleared insurance coverage for the patient. The Plaintiff then treated the patient and sent bills to Ocean Harbor. However, after receiving the bills Ocean Harbor denied the claim, claiming that the patient was driving her own vehicle during the accident, which they said they did not insure. The Plaintiff filed a lawsuit and served Ocean Harbor with the complaint on October 21, 2013.
2. The Plaintiff originally served the Defendant with a Request for Production and Interrogatories with the complaint. This included a request for the underwriting file. On November 5, 2013, the Court gave the Defendant 30 days to respond to that discovery. The Defendant did not timely serve the Plaintiff with any responses to the initial interrogatories or responses to the request to produce, so on December 5, 2013, the Court ordered the Defendant to respond within 10 days to the interrogatories, and in a separate order to respond to the requests for production within 10 days. The Defendant violated both orders.
3. The Plaintiff continued serving paper discovery requests and served more than ten additional discovery requests throughout the five years this case was pending prior to calendar call. All these requests were ignored. The Defendant violated three more court orders compelling the Defendant to respond to pieces of discovery in 2014. In December of 2015, another law firm substituted in for the original in-house attorney for the Defendant. That law firm also did not respond to discovery and did not respond to the court orders on the docket. The Plaintiff filed more than 19 motions for sanctions related to the numerous discovery violations. The Defendant failed to respond to any discovery requests for over five years, and ignored the motions.
4. On February 7, 2019, the Court held calendar call in this case, and scheduled the case for trial on February 25, 2019. On February 8, 2019, the Defendant finally provided documents in response to the initial request for production, more than five years later.
5. The documents demonstrated that the vehicle in question, a 2001 Mercury, was insured with the Defendant on April 9, 2013. However, on May 16, 2013, a mere fifteen days prior to the accident, there is a document in the file called “Endorsement Request,” and it has the names of “ESTRELLA INSURANCE”, as well as the comment “DELETE VEHICLE” and lists the vehicle in question. Notably, there is a signature line for the insurance agent and the insured, but both signature lines are blank. The Defendant suggests that this was proof that they did not insure the vehicle.
6. The Defendant also produced a claim note from the adjuster that shows that the insurer requested the original file from the insurance agency which purportedly made the request to delete the vehicle on 2/5/19. That note said, “the agent no longer has the file since it is more than 5 years old.”
7. The Plaintiff requested that the Court strike the pleadings because the Defendant violated the Court orders. The Plaintiff explained that the vehicle deletion form was hearsay and unsigned, and that if the insurer would have provided it earlier, the Plaintiff would have served a subpoena on the insurance agent to verify the cancellation of the vehicle. However, the Plaintiff could not go through the agent’s file to ensure that the vehicle was properly cancelled from the insurance policy as required by the policy and the Florida Statutes, and could not verify if such a request even occurred.
8. Furthermore, for the first time on February 8, 2019, the Defendant provided a host of documents from the Florida DHSMV that identified that the insured signed a power of attorney with Infinity insurance for the vehicle in question, suggesting that Infinity may have paid for the vehicle due to a total loss, and might have been another potential source of coverage. The Defendant had these documents since around January of 2016 but did not provide them until after the 2019 calendar call. The Plaintiff suggested it was prejudiced because it could no longer take legal action against Infinity, or the insurance agent for negligence, which they could have done if the documents were provided in accordance with the Court orders. However, the statute of limitations has come and gone for pursuing those claims. As such, the Plaintiff requested the Court strike the Defendant’s pleadings and enter a default judgment.
9. 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. The Kozel 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.
10. 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.
11. There is no doubt that the Defendant violated numerous court orders here. The Third District has already held that where numerous court orders were violated, that trial courts are “entitled to interpret [such] repeated failures to comply with discovery orders as willful and intentional, justifying the severe sanction of default.” Morales v. Perez, 445 So.2d 393 (Fla. 3d DCA, 1984). The Court finds these violations were willful.
12. The second factor is whether the attorney has been previously sanctioned. Here, the Plaintiffs have filed over 19 sanction requests over a period of five years. While the attorney has not been sanctioned, the requests for sanctions placed even one who takes a cursory glance at the docket on notice of the seriousness of the violations.
13. Regarding the third factor, the Court finds that Ocean Harbor itself was directly responsible for these violations because Ocean Harbor’s own in-house counsel was responsible for brunt of the violations. 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-1 Mobile MRI, Inc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 387d (Broward Cty. Ct. 2005). This particular Defendant apparently believes the Court’s Orders are not “orders,” but rather “suggestions” to which it may comply at its leisure.
14. Regarding the Fourth Kozel factor, the Plaintiff was severely prejudiced at trial, as the Plaintiff had a right to pursue the discovery with the insurance agent but was prevented from doing so because the insurer violated court orders and never provided the name of the agent or the forms in question. By the time the Defendant provided these documents the insurance agent had already deleted its file. Kozel factor number 4 specifically says “loss of evidence” is prejudice. The Court further finds that the Plaintiff was prejudiced by the delay because of the loss of the right to pursue other parties that were identified in the production, including Infinity, as well as the insurance agent. The statute of limitations was expired on those parties by the time the Defendant complied.
15. Regarding the fifth factor — whether the insurer offers justification for non-compliance — the insurer did not once give any reason why it had not complied. In fact, as of the first day of trial, the Defendant still had not responded to interrogatories.
16. Finally, the Court’s administration of justice has been hampered — as this case could have probably been resolved one way or another without trial had these orders not been violated. Our court system must function efficiently, and a party ignoring court orders only causes delays and clogged dockets. This Court expects all parties, Plaintiff or Defendant to follow the Rules of Procedure and Orders of this Court. The Court cannot function as efficiently, and trials do not go as smoothly if orders are repeatedly ignored.
17. 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, and given the severe prejudice, especially the loss of evidence from the insurance agent. For all these reasons, the Court must GRANT the Plaintiff’s Motion to Strike the Pleadings, and hereby enters a default in favor of the Plaintiff.
18. AS SUCH, FINAL JUDGMENT is hereby entered in favor of the Plaintiff in the amount of $2,636.00, plus interest from February 25, 2019, FOR WHICH LET EXECUTION ISSUE FORTHWITH. The Court reserves jurisdiction for any post-trial motions filed pursuant to the Florida Rules of Civil Procedure.
