27 Fla. L. Weekly Supp. 546a
Online Reference: FLWSUPP 2706PERSInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Default — Where over course of more than seven years insurer has failed to comply with discovery rules and multiple court orders requiring discovery, insurer was unable to offer any credible explanation for continued failure to comply with orders, misconduct was not result of neglect or experience of attorney but is attributable to insurer’s disobedience, insurer has previously been sanctioned multiple times by courts, delay prejudiced medical provider by causing it to incur more attorney’s fees than claim itself, and delay has created significant problems of judicial administration, insurer’s pleadings are stricken and default judgment is entered against insurer
PERSONAL INJURY CLINIC (THE), Plaintiff(s), v. UNITED AUTO INS. CO., Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division. Case No. 2012-002016-SP-21, Section HI 01. August 12, 2019. Milena Abreu, Judge. Counsel: Nikolas Salles, The Patino Law Firm, for Plaintiff. Karen E. Trefzger, for Defendant.
ORDER OF DEFAULT JUDGMENT AGAINST DEFENDANT
THIS CAUSE came before the Court on August 9, 2019 for hearing of the Plaintiff’s Motion to Strike Defendant’s Pleadings, and the Court having reviewed the Motion, heard argument of counsels; reviewed the relevant legal authorities, and made a thorough and exhaustive review of the case history, now fully advised in the issue, the Court rules as follows:
CASE HISTORY
1. On March 22, 2012, Plaintiff filed its complaint for unpaid PIP benefits together with its first set of Discovery requests. (The Court notes the initial set of interrogatories contains requests on the issue of reasonableness.)
2. On June 7, 2012, Defendant filed a Motion for Extension of Time to answer Plaintiff’s complaint.
3. On June 27, 2012, Plaintiff agreed to Defendant’s Motion for Extension of Time and Discovery, specifically providing for an additional 20 days for Defendant to answer the Complaint and an additional 30 days to respond to discovery.
4. On June 28, 2012, Defendant had general counsel file its Notice of Appearance.
5. On July 27, 2012, the Court issued its first Order to compel discovery for Defendant’s failure to respond to initial discovery despite receiving an extension of time.
6. On July 27, 2012 the Court also issued an Order of Default against the Defendant on the same date that was agreed to be set aside by the Plaintiff on January 31, 2013.
7. On January 3, 2012, Defendant filed its Answer and Affirmative Defense, almost 6 months after the Court’s initial Default Order.
8. On April 16, 2013, the Court issued its second Order granting another of Plaintiff’s Motion to Compel, re: interrogatories with 20 days to respond. Said Order went unanswered by Defendant.
9. On July 23, 2013, the Court issued its third Order granting another of Plaintiff’s Motion to Compel re: supplemental interrogatories and request to produce related to the accident with 20 days to respond. Said Order went unanswered by Defendant.
10. On the same date, the Court issued a fourth Order granting another of Plaintiff’s Motion to Compel re: supplemental interrogatories and request to produce on the issue of standing with 20 days to respond. Said Order went unanswered by Defendant.
11. On the same date, the Court issued a fifth Order granting another of Plaintiff’s Motion to Compel re: supplemental interrogatories and request to produce on the issue of a demand letter with 20 days to respond. Said Order went unanswered by Defendant.
12. The following year of 2014, Plaintiff filed numerous discovery requests related to other issues that also went unanswered by Defendant. As a result, on August 7, 2014, Plaintiff’s filed its first Motion for Sanctions for Defendant’s failure to comply with discovery deadlines. Immediately thereafter, the Court issued a sixth order to compel discovery related to the 2014 requests with 20 days to respond. Said Order went unanswered by Defendant.
13. On September 2, 2014, the court issued a seventh Order granting another Motion to Compel on the same discovery issue related to the Motion for Sanctions with 20 days to respond. Said Order went unanswered by Defendant.
14. On September 29, 2014, the Court issued an eighth Order granting Plaintiff’s Motion to Compel discovery re: false or misleading statements by Patient with 20 days to respond. Said Order went unanswered by Defendant.
15. On June 15, 2015, the Court issued a ninth Order granting Plaintiff’s Motion to Compel Discovery re: lawful treatment interrogatories with 20 days to respond. Said Order went unanswered by Defendant.
16. On June 17, 2015, the Court issued a tenth Order granting Plaintiff’s Motion to Compel Discovery re: production documents on medical necessity with 20 days to respond. Said order went unanswered by Defendant.
17. On April 7, 2017 the case was set on a FWOP calendar wherein the Court entered an Order leaving the case open and pending.
18. On May 3, 2018, the case was set on a FWOP calendar wherein the Court entered an Order leaving the case open and pending; however, the Court also issued a Jury Trial Order with numerous discovery and pre-trial motion deadlines contained therein. The case was subsequently reset for trial until 2019.
19. On June 5, 2019, the Court issued a new Jury Trial Order containing various discovery, pre-trial motion and evidentiary deadlines.
20. Seven years into litigation, at the Calendar call of August 6, 2019, the Defendant had yet to respond to any of the aforementioned court orders. As a result, the Defendant stipulated to the elements of relatedness, medical necessity, lawfulness of treatment, and coverage. However, the Defendant failed to stipulate to the issue of reasonableness and failed to provide a response to any discovery on this issue — mainly the initial interrogatory request on the issue of reasonableness made 7 years before. Motions were set to be heard for Friday, August 9, 2019 with trial to begin on August 12, 2019.
21. On August 9, 2019 Plaintiff’s Motion to Strike Defendant’s Pleadings and enter Default Judgment was heard.
LEGAL ANALYSIS:
The appropriate analysis for determining whether to enter a default judgment as a sanction against Defendant is set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994). The Court notes that while the Kozel case deals with a dismissal with prejudice as a sanction, the effect of a default as a sanction has the same result — the final disposition of the case.
The Florida Supreme Court has set forth six guidelines for a trial court to use to determine whether such a sanction is warranted:
1) Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or experience;
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 some other fashion;
5) Whether the attorney offered reasonable justification for noncompliance;
6) Whether the delay created significant problems of judicial administration.
Moreover, the Florida Supreme Court has held that “a deliberate and contumacious disregard of the court’s authority will justify application of the severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983). Using the factors and analysis in Kozel, and Mercer, the Court reviews the record in the instant case as it pertains to the Defendant, United Automobile Insurance Company.
Factor No 1: Just as this Court’s colleague, the learned and Honorable Robert Lee found in A1 Mobile MRI, Inc. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 387d, (2005), “the Court finds that the misconduct at issue lies at the feet of the Defendant itself, i.e., the client. The misconduct is not the result of neglect or experience of the attorney.
Factor No. 2: Because the Court finds the misconduct attributable to the Defendant itself, the Court notes this particular Defendant has been sanctioned dozens of times by Judge Lee alone. As Judge Lee has noted, “the Defendant itself, and not its attorneys, has paid thousands of dollars in sanctions. The client itself then must clearly be aware of the misconduct. If the Defendant is not intentionally attempting to ignore court orders, it is certainly acting at the very least with “gross indifference.” This Court agrees based on the history of the instant case. Moreover, the attorneys work directly for the client’s office of the General Counsel. They have no clients other than United Automobile Insurance Company. Judge Lee in his order cited to 19 different cases wherein the Defendant was either ordered to compel late discovery, or sanctioned for failure to comply with discovery. Clearly, Defendant’s conduct throughout two counties demonstrates a repeated pattern of willful and deliberate conduct.
Factor No. 3: As explained above, the Court finds the client itself was and is personally involved in the willful act of disobedience.
Factor No. 4: Despite this case involving one bill of $ 600.00, the Court reasonably concludes that Plaintiff has incurred far more fees than the $ 600.00 bill at issue for simply trying to get the information that was ultimately stipulated to by the Defendant throughout seven years of litigation. In addition to the financial expense, the Court notes the trial preparation prejudice to the Plaintiff on not being provided with the “expert” opinion on the reasonableness issue. The Defendant never answered the interrogatory on this issue, despite the court orders to do so.
Factor No. 5: The Defendant has offered no credible or legal explanation as to why it has continually failed to comply with this Courts’ orders. Defendant argued it was “peppered” with numerous irrelevant discovery requests when there was only one issue — reasonableness; yet the Defendant never moved for a Motion to Stay or a Motion to Limit Discovery; never motioned the Court for a protective order; never objected to the Plaintiff’s numerous discovery requests; never Motioned the Court to Reconsider any of its ruling on any of its orders; and never availed itself of the various remedies found within our rules of civil procedure. More importantly, as of the writing of this Order, the Defendant has yet to comply with the initial Court Order from 7 years ago regarding the interrogatory specifically related to the remaining reasonableness issue! Additionally, the Defense counsel argued she was not sure why the courts’ orders went unanswered nor was she trying to excuse this behavior as she took over the case from previous counsel. However, as explained above, this willful and gross indifference is attributable to the client itself. Additionally, the Defense points out the case was set on two separate “fwop” calendars; yet the Court fails to see how this “absolves” the Defendant of its obligations to abide by court orders. The Court finds that no credible explanation exists for the Defendant to continually fail to comply with this or any other Courts’ orders. Lastly, if the attorneys are “overworked,” or there are an insufficient number of attorneys and staff to handle its caseload, the Defendant cannot claim same as an excuse. This is most respectfully, the Defendant’s internal staffing decision problem and not the Courts’.
Factor No. 6: The rules of Judicial Administration recommend that small claim cases be resolved with eighteen (18) months. Clearly, this case far exceeds that timeline — needlessly. Throughout the 7 year life of this case, the Court has had to handle and review an inordinate amount of Motions for Sanctions and ex-parte discovery motions; indeed, the court has had to spend more than 2 days researching and drafting on this Order alone, in addition to the time spent at the hearing.
In conclusion, as pronounced orally in court to the parties, this Court sees no viable alternative sanction and finds the striking of Defendant’s pleadings and default judgment against defendant appropriate.
ORDERED AND ADJUDGED that the Defendant’s pleadings are hereby STRICKEN and a default judgment entered against the Defendant. The Court orders the Plaintiff to submit a proposed judgment for the amount prayed for in its complaint, declaring Plaintiff the prevailing party entitled to attorney’s fees and costs pursuant to F.S. 627.428 and reserving jurisdiction.
