9 Fla. L. Weekly Supp. 710a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 9 Fla. L. Weekly Supp. 711a
Insurance — Pleadings — False or fraudulent — Sanctions — Striking — Where insurer’s representative admittedly knew at time he signed affidavit and answers to interrogatories that relied-upon statutory provision requiring notice of initiation of treatment did not apply because statutory provision did not exist at time treatment was rendered, insured’s motion to strike insurer’s pleadings for fraud upon the court is granted
Cert. denied. 30 Fla. L. Weekly D607b
HIALEAH MEDICAL ASSOCIATES, INC., and DIAGNOSTIC STUDIES, INC., (as Assignees of MIGUEL RODRIGUEZ), Plaintiffs, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 01-10001 CC05 (03). July 31, 2002. Caryn C. Schwartz, Judge. Counsel: Virginia M. Best. Rashad El-Amin.
ORDER GRANTING PLAINTIFFS’ MOTION TOSTRIKE PLEADINGS FOR FRAUD UPON THE COURT
THIS CAUSE came on to be heard before the Court on Plaintiffs’ Motion to Strike Pleadings for Fraud Upon the Court and the Court having reviewed the file, having considered the memorandums of law and case law cited to therein filed by the Plaintiff and the Defendant, having reviewed the deposition transcript of the corporate representative with the most knowledge for Defendant, United Automobile Insurance Company, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Pleadings for Fraud Upon the Court be and the same is hereby GRANTED based upon the following reasons.
UNDISPUTED FACTS
Defendant filed a motion for summary judgment seeking a Final Summary Judgment against Plaintiff predicated upon an allegation that Plaintiffs failed to comply with F.S. §627.736(5)(b) by failing to do the following:
A. Plaintiffs, as medical providers, did not send a Notice of Initiation of Treatment to Defendant.
B. The medical bills were not postmarked until more than 30 days after the treatment commenced, exceeding the 30 day statutory time allowance, thereby precluding coverage under the insurance policy.
Defendant’s motion had no merit. Defendant was on constructive notice that as a matter of law its motion had no merit before even preparing and filing the motion. However, by the time Plaintiffs took the deposition of Defendant’s corporate representative, Carlos Plana, on December 4, 2001, filed of record on June 11, 2002, minimally, as of that date, Defendant was on actual notice and had actual knowledge that its motion for summary judgment had no basis in law or fact, was frivolous in nature and, most importantly, was false.
Defendant’s corporate representative, knowingly and willfully permitted the filing of a false affidavit which was used by Defendant in support of the motion for summary judgment and in so doing, the Defendant, as a result of Mr. Planas’ fraudulent affidavit, perpetrated a fraud upon the Court.
In the deposition of Carlos Plana, Mr. Plana was shown Defendant’s Motion for Summary Judgment with the attached exhibits, including Mr. Plana’s affidavit. Mr. Plana identified the affidavit and his signature, acknowledging that he was over the age of 18, competent to testify and that the affidavit was true. (Depo. Plana, p. 25, lines 10-25; p. 26, lines 1-23).
In the deposition regarding the motion for summary judgment and the affidavit signed by Mr. Plana, Mr. Plana was asked the following questions and gave the following answers:
Page 26, lines 24-25 and page 27, lines 1-4.
QUESTION: Now, this accident we discussed occurred on September 3,1996?
ANSWER: Yes.
QUESTION: When did the requirement for the 30 day, 60 day and 120 day notice of issuance of treatment commence?
ANSWER: October 1, 1998.
Page 27, lines 5-10, 12-17; and Page 28, lines 1-7.
QUESTION: And that was for accidents which occurred after October 1, 1998?
ANSWER: Yes.
QUESTION: So therefore does this affidavit and motion for summary judgment apply to an accident which occurred on September 3,1996?
ANSWER: No.
QUESTION: Did you know that at the time you signed the affidavit?
ANSWER: Yes.
QUESTION: And then why did you sign it?
(Defendant’s counsel voices several objections)
QUESTION: My question is: Why did you sign it?
ANSWER: I may have made a mistake.
QUESTION: But we are clear that we agree that the notice of initiation of treatment, the 30 day and 60 day billing does not apply to an accident on September 3, 1996?
ANSWER. Yes.
Defendant’s corporate representative admittedly knew at the time he signed the affidavit under oath that the relied upon provision of F.S. §627.736(5)(b) did not apply to the facts of this case because the subject provision did not exist at the time the medical treatment was rendered. All parties to an action have a duty to always advise the Court of the applicable law and to refrain from attempting to cause the Court to enter an adverse ruling against any other party based upon law that a party knows is inapplicable. It is undisputed that the policy period was from May 9, 1996 to May 9, 1997; the accident occurred on September 3, 1996, resulting in injuries sustained by Defendant’s insured, Miguel Rodriguez; the medical treatment provided by Plaintiffs to Mr. Rodriguez occurred from or about September 6, 1996 through February 21, 1997; and the medical bills were submitted in the amount of $5,404.00 on or about August 11, 2000.
The statutory provision of F.S. §627.736(5)(b) upon which Defendant relied and for which Defendant’s corporate representative filed his affidavit, did not come into existence until October 1, 1998, over two years after the policy was issued and over two years after medical treatment was commenced. At the time the policy was in force and effect, the accident occurred, the medical treatment was rendered and the medical bills were incurred, F.S. §627.736(5)(b) did not exist.
THE LAW
Defendant’s actions in filing false responses to interrogatories that go to the heart of the denial of the claim warrant striking of the pleadings and a judgment entered in favor of Plaintiff. See Baker v. Myers Tractor Servs. Inc., 765 So.2d 149, 150 (Fla. 1st DCA 2000) (“Honesty is not a luxury to be invoked at the convenience of a litigant. Instead, complete candor must be demanded in order to preserve the ability of this court to effectively administer justice…[A] system that relies upon an adversary’s ability to uncover falsehoods is doomed to failure.”); Babe Elias Builders, Inc. v. Pernick, 765 So.2d 119 (Fla. 3d DCA 2000) (Discovery misconduct mandated dismissal); Metropolitan Dade County v. Martinson, 736 So.2d 794, 795 (Fla. 3d DCA 1999) (“Because the record clearly establishes that plaintiff engaged in serious misconduct, we hold that she has forfeited her right to proceed.”) Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA 1988) (“Our courts have often recognized and enforced the principle that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends.”); Figgie International, Inc. v. Alderman, 698 So.2d 563(Fla. 3d DCA 1997) (False responses to production requests mandated dismissal) and Horjales v. Loeb, 291 So.2d 92 (Fla. 3 DCA, 1976) (Court dismisses the case because Plaintiff’s sworn testimony was false).
Every court has inherent powers to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. Anderson v. State, 267 So.2d 8 (Fla. 1972).
In Hazel-Atlas Glass Co. v Hartford-Empire Co., 322 U.S. 238, 246 (1944), the Supreme Court stated as follows:
…tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always await upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.
The Hazel-Atlas Court was cited to by Brockton Savings Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11 (1st Cir. 1985), in the context of pretrial discovery misconduct where the Brockton Court found support for entering a default “to protect the administration of justice by levying sanctions in response to abusive litigations practices.” In Young v. Curgil, 358 So.2d 58 (Fla. 3d DCA 1978), the Third District stated that
The law is clear that a trial court has the inherent authority to dismiss actions based on fraud and collusion as well as to strike sham pleadings. Such a power is indispensable to the proper administration of justice because no litigant has the right to trifle with the Courts.
FINDINGS OF THE COURT
In the instant case, Defendant has engaged in just the kind of activity that warrants the striking of Defendant’s pleadings. Defendant’s corporate representative willfully and knowingly filed a false affidavit, which was used by Defendant for the purpose of seeking a summary judgment against the Plaintiffs based upon a statutory provision Defendant at all times knew was not in force, effect or even in existence at any time material to the services rendered. Defendant’s corporate representative acknowledged in his deposition that he knew when the statutory provision being relied upon came into existence and knew that the affidavit and motion did not apply to the accident date in question. Mr. Planas’ answer in his deposition, “I may have made a mistake”, which was in response to Plaintiff’s question, “And then why did you sign it?” was completely contrary to his actions and to his prior and subsequent responses to Plaintiff’s questions on pages 26, 27, and 28 of Mr. Planas’ deposition. Defendant’s corporate representative also signed Answers to Interrogatories under oath with the same false information relying upon a statute not yet in existence as grounds for denial of coverage.
Accordingly, based upon the case law cited, this Court finds that the Plaintiffs are entitled to sanctions in the form of striking Defendant’s pleadings. Not only did Defendant’s corporate representative knowingly and willfully file a false affidavit, but Defendant relied in its answer and affirmative defenses and in its interrogatory responses filed under oath on the same false testimony in an attempt to deprive Plaintiff of coverage to which it is entitled under the policy of Defendant’s insured. The false representations made by Defendant’s corporate representative constitute a perpetration of a fraud upon the Court. Such actions constitute serious misconduct and tampering with the administration of justice. Accordingly, Plaintiff’s motion for sanctions is granted and Defendant’s pleadings are hereby stricken.
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