28 Fla. L. Weekly Supp. 331b
Online Reference: FLWSUPP 2804MONT
Insurance — Personal injury protection — Discovery — Motion to compel production of medical records that do not pertain to medical provider’s assignor is denied — Pursuant to order to provide underwriting materials for “subject policy,” insurer must produce materials for policy under which claim was filed irrespective of whether it provides PIP coverage — Failure to comply — Sanctions — Where privilege log filed by insurer in response to request that it produce items for inspection claimed privilege for items that do not exist, and improper privilege log caused unnecessary litigation, motion for sanctions for fraud on court is granted
MANUEL V. FEIJOO, M.D, et al., a/a/o Angel Montero, Plaintiffs, v. GEICO CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2017-005099-SP-25, Section CG02. June 17, 2020. Elijah A. Levitt, Judge. Counsel: Maylin Castaneda, Law Office of Kenneth B. Scurr, P.A., Coral Gables, for Plaintiff. Peter Winstein, for Defendant.
OMNIBUS ORDER ON PLAINTIFF’S MOTIONS FOR SANCTIONS FOR FRAUD ON THE COURTAND MOTION TO COMPELPRODUCTION OF DOCUMENTS
This cause came before the Court on Plaintiff’s Motions, and the Court being advised in the premises hereby ORDERS and ADJUDGES as follows:
1. The Motion to Compel Medical Records from the privilege log is DENIED. The records in the privilege log do not pertain to Plaintiff’s assignor in this case.
2. The Motion to Compel Underwriting materials is GRANTED for the second time. Instead of complying with the Court’s December 23, 2019, Order requiring production of the “underwriting materials for the subject policy,” on March 20, 2020, Defendant wrote the Court a letter to advise that “no underwriting guidelines exist as it pertains to Personal Injury Protection Benefits since Oklahoma policies do not provide PIP coverage.”1 The Order does not say anything about a PIP policy; the Order is clear that it pertains to “the subject policy.” Defendant needs to comply with the Court Order. Defendant has fifteen (15) days from the date of this Order to produce the “underwriting materials for the subject policy” as previously ordered. To clarify, the subject policy means the policy for the insured under which Plaintiff filed the claim for benefits in this case.
3. Plaintiff’s Motion for Sanctions Based on Fraud on the Court is GRANTED in part. The Court grants sanctions under Florida Rule of Civil Procedure 1.380(a). The Rule provides, in pertinent part,
(a) Motion for Order Compelling Discovery. Upon reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows:. . .
(2). . .[i]f a party in response to a request for inspection submitted under rule 1.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested. . .the discovering party may move for an order compelling an answer, or a designation or an order compelling inspection. . .
(3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer shall be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was justified, or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.
The Court finds that Plaintiff made a good faith effort to obtain the discovery without court intervention, the opposition to the motion was not justified, and that the interests of justice are served by granting this Motion.
On May 5, 2017, and March 1, 2019, Plaintiff requested certain items be inspected and produced through the discovery process. Defendant objected to the production of some of these items and, on March 29, 2019, filed a privilege log, which the Court later reviewed in camera upon Plaintiff’s Motion to Compel.
The basis for the Motion for Sanctions is that the privilege log listed items that do not exist, namely items 3, 4, and 5 of its “Relevancy Log” section on pages 3 and 4. After the Court reviewed the identified documents in camera, the Court found that items 3, 4, and 5 were missing. The Court informed the parties in open court that those items were missing and asked Defendant to research the missing items.
In its March 20, 2020, letter to the Court, Defendant confirmed that most of those items never existed. As such, Defendant’s initial privilege log was an evasive and incomplete answer, which shall be treated as a failure to answer. See Fla. R. Civ. P. 1.380(a)(3). On May 27, 2020, the Court held a hearing on Plaintiff’s Motion for Sanctions for Fraud on the Court. The Court also reviewed Defendant’s written June 11, 2020, Response to the Motion.
After review of the evidence and court docket, the Court finds Defendant’s improper privilege log caused unnecessary litigation, impeded Plaintiff’s investigation, and negatively impacted the efficient administration of justice in this case. Accordingly, Defendant is required to pay for Plaintiff’s reasonable expenses that Defendant caused Plaintiff to incur.
Wherefore, pursuant to Rule 1.380(a)(4), Plaintiff is entitled to its reasonable expenses, including attorney’s fees, incurred for its investigation of Defendant’s privilege log items 3, 4, and 5, and the Court grants Plaintiff’s Motion for Sanctions for Fraud on the Court as provided herein.
Within thirty (30) days of the date of this Order, Plaintiff shall provide to Defendant, and file with the Court, timesheets and supporting affidavits, including an expert’s affidavit, for the fees, costs, and interest incurred for the improper filing of privilege log items 3, 4, and 5. Defendant shall also pay Plaintiff’s expert for the expert’s costs and fees. Within thirty (30) days of receipt of Plaintiff’s timesheets and affidavits, Defendant may respond to the reasonableness of Plaintiff’s timesheets and provide an expert affidavit in support of its position. Within fifteen (15) days of receipt of Defendant’s response, Plaintiff may file a reply to Defendant’s response. Based on the evidence provided, the Court may impose costs and fees in favor of Plaintiff without a hearing. Plaintiff’s attorneys shall not obtain a duplicate recovery for these costs and fees under Florida Statute Section 627.428 and Florida Rule of Civil Procedure 1.525. Conversely, Defendant’s costs and fees will not be reduced by the amount awarded to Plaintiff’s attorneys under this Order.
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1The letter and exhibits attached thereto are being submitted with this Order. [Editor’s note: attachments omitted]
