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Williams v. Prepared Insurance Co.

Florida Court of Appeals, Fourth District

June 12, 2019

REGINALD WILLIAMS and CHANEL WILLIAMS, Appellants,
v.
PREPARED INSURANCE COMPANY, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 15-14454 CACE (12).

          Melissa A. Giasi of Sivyer Barlow & Watson, P.A., Tampa, for appellants.

          Melinda S. Thornton and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for appellee.

          CIKLIN, J.

         In this breach of homeowners insurance contract suit, Prepared Insurance Company ("the insurance company") was unable to procure the presence of an initial witness who was listed by Reginald and Chanel Williams ("the plaintiffs") but later omitted from their witness list. The insurance company, and ultimately the trial court, placed fault on the plaintiffs and their law firm for the witness's refusal to appear for deposition. As a sanction, the trial court (1) struck the plaintiffs' pleadings, and (2) imposed sanctions on the plaintiffs' law firm for bad faith litigation. We agree with the plaintiffs that the plaintiffs and their law firm cannot be held accountable for the failure of a non-party to appear for a deposition. Additionally, the trial court failed to identify any rule or court order that the plaintiffs and their attorneys failed to obey. We reverse.

         After the plaintiffs allegedly suffered damage to their home due to a broken pipe, Chanel Williams was put into contact with Ramon Rodriguez, whom she identified as a "public adjuster."[1] The plaintiffs then retained the Strems Law Firm ("the law firm"), which sent the insurance company a letter advising of its retention and providing contact information for Rodriguez, whom the law firm identified as "our loss consultant."

         The insurance company ultimately denied the plaintiffs' home damage claim based on its inability to "properly investigate" the incident. Thereupon the plaintiffs sued the insurance company for breach of contract.

         Before the plaintiffs filed their trial witness list, the insurance company sought to depose Rodriguez. It issued notices of deposition duces tecum directed to both Rodriguez and an unnamed corporate representative of the company with whom Rodriguez was affiliated, Let Us Claim Consultants, Inc. Assuming that Rodriguez would appear for deposition as the corporate representative of Let Us Claim Consultants, Inc., the insurance company attempted service of Rodriguez at a Pembroke Pines address which turned out to be a UPS store. Eventually, the insurance company obtained substitute service of Rodriguez at a Miramar address discovered by the insurance company through a search of Florida Division of Corporations records.

         Rodriguez did not appear for the December 2015 deposition, and based on the insurance company's motions for rule to show cause, the trial court issued orders to show cause directed to Rodriguez and "the corporate representative" of Let Us Claim Consultants, Inc. For case management purposes, the trial court directed the insurance company to re-notice the depositions and set the show cause hearing for a date after the depositions. The insurance company re-noticed the depositions for May 2016. For this deposition, the insurance company obtained substitute service of Rodriguez at the UPS store in Pembroke Pines. Rodriguez did not appear for deposition.

         The insurance company moved for sanctions and to strike the plaintiffs' breach of insurance contract pleadings, alleging in part that the plaintiffs failed to appear for deposition, failed to provide discovery, and that "their own Loss Consultants have failed to appear for deposition." The trial court entered an agreed order in which it provided that the motion was granted in part and denied in part and directed the plaintiffs as a sanction to reimburse the insurance company a small amount of money. The order did not identify the portions of the motion that were granted and denied.

         The litigation stretched into 2017. As the trial date approached, the plaintiffs, in January of 2017, listed an engineer/general contractor as their expert witness and asserted that he would testify as to the cost and scope of repairs necessary based on his inspection of the property and information and photographs provided by the plaintiffs. In their trial witness list, the plaintiffs also named Rodriguez as a fact witness and provided Rodriguez's Pembroke Pines address.

         In June, in response to a motion to show cause, the trial court entered an order directing Rodriguez and the corporate representative of Let Us Claim Consultants, Inc. to appear for deposition within twenty days or appear before the court on July 6 to explain why they should not be held in contempt. Also in June, the insurance company moved to compel a "better address and for sanctions." The insurance company asserted that in April, the plaintiffs provided the Pembroke Pines address for Rodriguez, but the insurance company's substitute service of Rodriguez at that address, which it had come to discover was a UPS store, had not resulted in Rodriguez appearing for deposition. The insurance company further alleged that the plaintiffs' listing of a UPS store address established that they "knowingly provided an address at which personal service cannot be effectuated, rather than providing a proper service address for their witness, and have further refused to produce their witness for deposition, requiring [the insurance company] to subpoena Ramon Rodriguez." The insurance company requested the court direct the plaintiffs to "provide a proper service address for Ramon Rodriguez, or produce [him] for deposition," and it sought fees and additional costs as a sanction.

         A hearing was held, during which counsel for the plaintiffs asserted that the Pembroke Pines address it provided was the address on Rodriguez's estimate and that his law firm did not realize it was an incorrect address. Plaintiffs' counsel also stated that he had conducted a Google search "last night" and found an Orlando address related to Let Us Claim Consultants, Inc.

         The trial court directed plaintiffs' counsel to "provide [the insurance company] with an address within ten days from the date hereof and to call Mr. Rodriguez and say that there's a subpoena coming, and if he dodges it, then we'll take it up directly with him and he may be down here with BSO."

         After the hearing, the plaintiffs and their law firm provided an Orlando address for Rodriguez. Of note, the plaintiffs also ...


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