8 Fla. L. Weekly Supp. 71a
Civil procedure — Insurance — Personal injury protection — Error to enter order striking insurer’s pleadings for failure to comply with discovery orders where there was no express determination as to whether insurer’s actions were willful and deliberate, and there was no showing of prejudice to insureds
UNITED AUTOMOBILE INSURANCE COMPANY, Defendant/Appellant, vs. MARIA T. LOPEZ, Plaintiff/Appellee, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant/Appellant, vs. GUILLERMO COLINA, Plaintiff/Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case Nos. 99-353 AP & 99-354 AP. L.C. Case Nos. 98-8531 CC 25 & 98-8530 CC 25. Opinion filed October 31, 2000. Counsel: June G. Hoffman and Steven E. Stark, for Appellant. Timothy J. Chuilli, for Appellees.
(Before AMY N. DEAN, PHILLIP BLOOM, and RONALD M. FRIEDMAN, JJ.)
(AMY N. DEAN, J.) This is an appeal from orders denying Defendant’s Motion for Relief or Rehearing entered on June 29, 1999 and Final Judgments entered on September 29, 1999.
On November 2, 1998, Appellees, Maria Lopez and Guillermo Colina, served Complaints upon Appellant, United Automobile Insurance Company, seeking payment of personal injury protection benefits. The Complaints were accompanied with the set of interrogatories and the request to produce which are the subject matter of the instant appeal. Appellant timely answered the complaints.
On January 19, 1999, Appellees served Uniform First Motions to Compel Discovery upon counsel for the Appellant. The lower Court entered ex-parte orders compelling discovery which permitted Appellant fifteen (15) days to respond. On April 4, 1999, Appellees served Uniform Motions for Second Orders Compelling Discovery. The lower Court entered ex-parte Uniform Orders Compelling Discovery which permitted ten (10) days to respond to outstanding discovery. These orders further provided that a failure to comply with same would allow Appellees to apply ex-parte for an issuance of an Order to Show Cause why Appellant’s pleadings should not be stricken.
On April 20, 1999 and April 22, 1999, Appellees, Colina and Lopez, respectively, filed Motions for entry of Final Judgment or alternatively, Partial Summary Judgment and entry of Final Judgment. Appellant’s counsel responded to these motions by filing memos and affidavits in opposition on a timely basis.
On April 30, 1999, the lower Court entered Orders to Show Cause requiring Appellant to show cause within seven (7) days as to why there had not been compliance with the prior Orders of Discovery. Additionally, the orders required Appellant to pay Three Hundred and Fifty dollars ($350) as a sanction, noting that a failure to comply with the requirements of the orders might result in the striking of pleadings without further notice or hearing.
Prior to the date of compliance with the orders to show cause, Appellant’s counsel left the law firm which had assumed responsibility for the instant cases. On May 7, 1999, the date compliance was due in response to the Order to Show Cause, Appellant’s counsel sent a letter to Appellee’s counsel via fax and U.S. mail explaining the change in personnel and that a successor attorney would comply with outstanding discovery within the next business day. The next business day, May 10, 1999, Appellant’s counsel served by fax and U.S. mail Appellant’s responses to the request to produce and the interrogatories. Despite Appellant’s compliance, on May 19, 1999, Appellees filed Motions to Strike Pleadings in which it was represented that there had been no compliance with the two prior discovery orders nor with the Orders to Show Cause.
On June 1, 1999, the lower Court entered ex-parte orders granting Appellee’s Motions to Strike Pleadings. There was no finding that Appellant had wilfully or deliberately disregarded the Court’s prior discovery orders nor any finding as to the prejudice suffered by Appellees. There was no indication that the lower Court knew that any efforts had been made on the part of Appellant to respond to outstanding discovery three weeks prior to the entry of these orders.
On June 2, 1999, Appellant’s counsel had filed notices of hearing on Plaintiff’s Motion to Strike Pleadings for June 14, 1999. However, on June 9, 1999, Appellant’s counsel received the ex-parte order striking his client’s pleadings and therefore Appellant’s counsel served revised notices of hearings and filed Motions for Rehearing and scheduled same for June 14, 1999. In the motion as well as at the hearing on June 29, 1999, the lower Court was apprised of Appellant’s efforts to comply with prior discovery orders. However, there was no effort by the lower court to determine whether full compliance had been accomplished by the Appellant in its responses and there was no determination that the Appellant was in contumacious disregard of the Court’s prior discovery orders.
In this regard, it is well established that an order striking pleadings for discovery violations is an extreme sanction which can only be imposed upon a party’s non-compliance or deliberate disregard of a Court’s authority. See, Commonwealth Federal Savings and Loan Association vs. Tubero, 569 So.2d 1271 (Fla. 1990); Baha Village Markets, Inc. vs. Baha Supermarket, Inc., 712 So.2d 465 (Fla. 3d DCA 1998). Thus, because Florida has a long standing policy in favor of trials on the merits, the striking of pleadings is viewed as an extreme sanction which should only be viewed as a remedy of the last resort. See, Thomas vs. Feinberg, 24 Fla. L. Weekly D2638 (Fla. 3d DCA, November 24, 1999); Mack vs. National Constructors, Inc., 666 So.2d 44 (Fla. 3d DCA 1996).
In Mercer vs. Raine, 443 So.2d 944 (Fla. 1983), the Florida Supreme Court described what would constitute such extreme circumstances:
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. 443 So.2d at 946.
Additionally, before a Court may strike a party’s pleadings, the Court is required to make an express determination as to whether the offending party’s actions were willful or deliberate. No such finding was made in the instant case and certainly no finding was made that the Appellant was in fact responsible for the errors in responding to discovery rather than its counsel.1 See, Dollan Wise Travel, Inc. vs. Al-Farooque, 731 So. 2d 848 (Fla. 3d DCA 1999); Beauchamp vs. Collins, 500 So.2d 294 (Fla. 3d DCA 1986). Moreover, there was no showing of prejudice to the Appellees as the cause had not been noticed or set for trial.
Based upon the foregoing, this Cause is REVERSED and REMANDED to the lower Court to reinstate the pleadings and allow the instant matters to proceed on the merits.
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1It is axiomatic that when ex-parte motions and orders are utilized, full disclosure must be made to the trial court. In the instant case, Appellees’ counsel failed to advise the Court that discovery had in fact been provided by Appellant. It is for the Court to determine whether discovery was fully provided and not opposing counsel.
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