23 Fla. L. Weekly Supp. 1070a
Online Reference: FLWSUPP 2310ORTIInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer has deliberately failed to comply with multiple orders requiring production of geozip information and has made substantial misrepresentations to court and attempted to use results of its own bad faith conduct as excuse for noncompliance with orders, and insurer’s conduct has prejudiced medical provider in its attempts to obtain discoverable evidence and prosecute action, insurer’s pleadings are stricken and default judgment is entered
HEALTH DIAGNOSTICS OF ORLANDO, LLC, d/b/a STAND UP MRI OF ORLANDO, a/a/o Jessica Ortiz, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO12-009389(70). February 26, 2016. Honorable John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Kyle Mixson, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONTO STRIKE STATE FARM’S PLEADINGS FORWILLFUL NONCOMPLIANCE WITH COURT ORDERAND LACK OF CANDOR TOWARD THE TRIBUNAL
THIS CAUSE having come to be considered on February 04, 2016 on Plaintiff’s Motion to Strike State Farm’s Pleadings for Willful Noncompliance with Court Order and Lack of Candor Toward the Tribunal, and the Court having heard argument from counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon ORDERED AND ADJUDGED as follows:FINDINGS OF FACT
1. The above-captioned lawsuit arises out of a claim for unpaid personal injury protection benefits.
2. State Farm’s ongoing theme and apparent strategy in this case was abundantly clear to this Court: State Farm would do everything in its power to delay the ultimate resolution of this case. The Court finds that although the law firm at the time1 executed the plan, State Farm was the one driving the train.
3. On or about May 18, 2015 — 262 days ago — Plaintiff propounded its second request to produce to Defendant seeking “geozip” information.
4. Pursuant to the Court’s Order on Case Management and Imposing Time Limitations, which was entered on March 19, 2015, the Defendant had 20 days from the date of the receipt of discovery (i.e., until June 08, 2015) to serve its objections along with a notice of hearing for the objections.
5. On June 04, 2015, Defendant served its response to Plaintiff’s second request to produce and objected to producing the “geozip” information as follows:
“Objection: pursuant to Fla. R. Civ. P. 1.350, the Defendant is not required to produce a document that does not exist. Furthermore, the Plaintiff already has this information in its possession and/or control.”
6. At the status conference held on July 10, 2015, Plaintiff attempted to address Defendant’s failure to produce the geozip information, but defense counsel indicated that she was unprepared to address this issue, despite the fact that this Court has previously ordered this Defendant to produce the same geozip information in hundreds of cases (over defendant’s objection).
7. Despite the foregoing, the Court honored defense counsel’s request and agreed to postpone the resolution of this matter to a later date to give defense counsel more time to prepare, but cautioned that if the Court ultimately agreed with Plaintiff and ordered that the geozip information be produced, there would be a very short turnaround for the Defendant to get the requested information and produce it to the Plaintiff.
8. On July 15, 2015, this Court held a hearing on the Defendant’s objections to producing the geozip information and, as it has done every single time, overruled Defendant’s objections and required Defendant to produce the “geozip” information by 12:00 p.m. on July 17, 2015. State Farm failed to comply.
9. At the hearing, defense counsel explicitly agreed that State Farm would ultimately produce the Geozips:
DEFENSE COUNSEL: I have spoken with [plaintiff’s counsel] already regarding the scope of the Geozips in anticipation, Your Honor, we’ll ultimately produce them. Given that there’s so many cases I would just like to produce one or four Geozips, if possible.
10. Although the Court’s ruling was made abundantly clear, a physical order was not signed at the hearing because the parties agreed that they would submit a proposed order to the Court. In fact, counsel for the Defendant specifically indicated as follows:
We, defense counsel and plaintiff’s counsel have agreed that defendant will send a proposed order which encompasses the court’s ruling by 12:00 p.m. noon today, July 15, 2015; and that regardless, the Geozip will be produced to plaintiff’s counsel in conformance of the Court’s Order by Friday, July 17th, at noon. State Farm failed to Comply.
11. Defense counsel and Plaintiff’s counsel ultimately agreed to the language of a proposed order on July 16, 2015, but despite defense counsel indicating that they would submit the order for the Court’s execution, they intentionally failed to do so.2
12. Defendant’s noncompliance was brought before this Court on July 20, 2015, at the hearing on Plaintiff’s motion for summary judgment. The Court was shocked by defense counsel’s disingenuous argument that the reason State Farm did not comply was because there was no written order entered. It is a sad day when a litigant’s own conduct directly causes a result (i.e., in this case a written order didn’t get entered) and then attempts to come to the Court and use this reprehensible conduct to its advantage.
13. Based on what had actually transpired as set forth above, the Court rejected defense counsel’s argument and entered a second order compelling State Farm to produce the “geozip” information by 12:00 p.m. on July 24, 2015. State Farm, again, failed to comply. The Court also deferred ruling as to whether State Farm’s failure to comply was willful or wanton and the Court reserved ruling on Plaintiff’s request for sanctions.
14. As another example of dishonesty, at the hearing on Plaintiff’s motion for summary judgment/disposition, defense counsel argued that it was not prepared to go forward with the hearing because they never received the deposition transcripts that Plaintiff was required to serve. This later proved to be false, but the Court nevertheless continued the hearing based on this misrepresentation.
15. Despite the fact that this Court had ordered Defendant to produce the geozip information on July 15, 2015, and despite the fact that Defendant had already violated at least 2 Court orders, Defendant, on July 24, 2015 — a few business hours before the hearing — filed a Writ of Certiorari and Emergency Motion to Stay.
16. On July 28, 2015, this Court heard argument on Defendant’s motion to stay. The Court found that the choice of language in the writ that the Court failed to act was patently false since the Court was never given an opportunity to act. The Court also specifically found that Defendant’s position as to the “geozip” discovery was frivolous and meritless.
17. Despite the Defendant’s bad-faith conduct and the numerous falsities that were exposed, this Court felt obligated to freeze the case to allow the Defendant adequate appellate review.
18. A discussion was had that if the appellate court ruled against State Farm, then it would be right back where is left off, which was in breach of this Court’s orders.
19. On January 20, 2016, Defendant’s Writ of Certiorari was denied.
20. On January 27, 2016, Plaintiff filed its motion to strike State Farm’s pleadings for willful noncompliance with Court order.ANALYSIS AND CONCLUSIONS OF LAW
1. The production of geozips and there use in PIP litigation is not a novel concept for this Court or the litigants and has been utilized for years. In fact, the Court was able to locate a case that dates back to 2006 where geozip information was required to be produced. Additionally, this Court has held countless hearings regarding the production of geozips, this Court has reviewed geozips previously produced by State Farm, this Court has reviewed other Courts’ orders requiring the production of geozips, and this Court has ordered State Farm to produce geozips in other cases at least 300 to 500 times. To date, this Court is unaware of any appellate court finding that this Court’s ruling or the various rulings from other Courts were improper.
2. In this case, the Court begins its analysis by pointing out that if the Defendant disagreed with any of the Court’s numerous orders requiring the production of geozip information, it had two viable options: (1) comply with the orders; or (2) file a timely appeal.
3. This Court finds that State Farm made a conscious decision not to comply with this Court’s Orders and to misrepresent information to this Court in an attempt to cause delay.
4. In fact, the Court finds that State Farm and its attorney’s conduct from the inception was nothing more than an intentional delay tactic.
5. As a result of State Farm’s repeated noncompliance and its multiple misrepresentations, Plaintiff’s counsel was required to conduct extensive research and attend several hearings (all of which prolonged the potential resolution in this matter). As such, Plaintiff requested that State Farm’s pleadings be stricken and a default judgment be entered.
6. When deciding this issue, which the Court takes very seriously, the Court is guided by Rule 1.380(b)(2) of the Florida Rules of Civil Procedure, which provides as follows:
If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders:
(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.
(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.
Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
7. The Court specifically finds that State Farm’s violation of the Court’s orders to produce relevant information and, perhaps more importantly, the misrepresentations made by, or on behalf of, State Farm were willful, deliberate, and contumacious.
8. When this Court enters an order — regardless of whether it is reduced to writing — it expects that the order will resolve the issue and that the parties will comply, but that was not the case here. The fact that State Farm not only continued to ignore multiple court orders without good cause, but also made substantial misrepresentations to this Court and attempted to use the results of its own bad-faith conduct as an excuse certainly warrants the imposition of appropriate sanctions.
9. The Court finds that State Farm and its attorney’s bad-faith conduct is so egregious that the remedy of having its pleadings stricken and default judgment entered is appropriate under these facts. In fact, based on the totality of what occurred before this Court during the pendency of this case, this was the closest that this Court has ever came to reporting an attorney’s conduct to the Florida Bar.
10. In determining whether the sanction of the entry of a default against Defendant is warranted, the Court is mindful of the six-prong test delineated in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994); see also, Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) [30 Fla. L. Weekly S6a] and Mercer v. Raine, 443 So. 2d 944 (Fla. 1983):
a. Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
b. Whether the attorney has been previously sanctioned;
c. Whether the client was personally involved in the act of disobedience;
d. Whether the delay prejudiced the opposing party through undo expense, loss of evidence or some other fashion;
e. Whether the attorney offered reasonable justification for noncompliance; and
f. Whether the delay created significant problems of judicial administration.
11. The Court finds that State Farm actively participated in its attorney’s conduct and that conduct was willful, deliberate, and contumacious rather than an act of neglect or inexperience.
12. This Court is aware of at least 77 cases in its division involving the same Plaintiff and Defendant. Out of those 77 cases, this Court has ordered the production of geozip information in approximately 46 of those cases and State Farm has failed to comply with 42 of those orders.
13. The Court points this out to demonstrate that State Farm’s repeated violations of orders in the case at bar are not just mere isolated incidents, but instead are becoming the norm in this division, which clearly demonstrates State Farm’s willful, deliberate, or contumacious disregard for the Court’s authority and the Rules of Civil Procedure.
14. The Court has previously sanctioned State Farm (including striking State Farm’s pleadings in several cases for the same conduct at issue in this case). In fact, the Court made every effort to use a progressive sanction spectrum to give State Farm every possible opportunity to comply with this Court’s orders.
15. The Court finds that State Farm was personally involved in the act of disobedience in this case.
16. The Court finds that State Farm’s willful failure to abide by this Court’s orders and the Rules of Civil Procedure and State Farm’s misrepresentations have prejudiced the Plaintiff in its attempt to obtain discoverable evidence and to prosecute this matter and bring it to a conclusion.
17. The Court finds that Defendant failed to offer a reasonable justification for its repeated noncompliance with Court orders.
18. The Court finds that State Farm’s conduct created a significant problem of judicial administration.
19. Among other things, State Farm’s conduct has resulted in significant delay, the unnecessary use of judicial resources, and has caused the Court to cancel previously scheduled hearings on Plaintiff’s Motion for Summary Disposition.3
20. As such, the Court finds that Defendant has clearly engaged in a pattern designed to thwart discovery evincing a continuous pattern of willful, deliberate, and contumacious disregard of the Florida Rules of Civil Procedure and the Court’s several orders concerning its obligation to produce this information.
21. For the reasons set forth in this Order as well as the reasons set forth on the record, Plaintiff’s motion is granted and State Farm’s pleadings are stricken and default judgment is entered. Plaintiff is directed to submit a final judgment in its favor.
__________________
1The law firm of Vernis & Bowling of Broward, P.A. was counsel of record until October 20, 2015, when the law firm of Matt Hellman, P.A. was substituted in.
2In an email from defense counsel to plaintiff’s counsel, dated July 15, 2015, defense counsel indicated “Just following up, please let me know if I can submit this order on all of our cases. I have already contacted State Farm regarding the production of the Geo Zip.” (Emphasis added).
3The Court has had to cancel a total of 19 previously scheduled hearings on Plaintiff’s Motion for Summary Disposition because of State Farm’s noncompliance with orders.