New Hampshire Ins. Co., Inc. v. Royal Ins. Co., 88-1258
| Decision Date | 28 March 1990 |
| Docket Number | No. 88-1258,88-1258 |
| Parties | 15 Fla. L. Weekly D811 NEW HAMPSHIRE INSURANCE COMPANY, INC., Appellant, v. ROYAL INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Neil Rose and Henry T. Wihnyk of Conroy, Simberg & Lewis, P.A., Hollywood, for appellant.
John Bond Atkinson, Marie P. Henwood and Wendy F. Lumish of Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, Miami, for appellee.
We reverse an order which entered final judgment in favor of an appellee after the trial court struck the appellant's pleadings for "intentional failure to comply with court's order and prejudice shown by [appellee]." The order which appellant failed to comply with directed the appellant to "comply with discovery" within ten days. The discovery requested consisted of a request to produce appellant's underwriting file together with interrogatories requesting information from that file. The discovery had been requested three months before, and one other ex parte order requiring answers had been entered.
Appellant's compliance with the order consisted of filing a response to the request stating that the underwriting file had been destroyed. Appellant's counsel signed interrogatories stating that the information requested could not be furnished because the files were destroyed. 1 Appellee then filed a motion to strike the pleadings for failure to comply with the court order.
We confess that we have great sympathy for the trial court in dealing with the frustrations of requiring compliance with discovery orders. An undue amount of trial court time is spent policing what the Rules of Civil Procedure contemplated would be an orderly and expeditious discovery process in civil cases. Unfortunately, in all too many cases nothing could be farther than the truth. Nevertheless, using the ultimate sanction of dismissal should always be viewed as a remedy of last resort and only in cases where the conduct of the party evidences deliberate and willful failure to submit to discovery. Mercer v. Raine, 443 So.2d 944 (Fla.1983).
It seems to us that in this case appellant did comply, albeit with a response that appellee does not like. However, since there was compliance, the court cannot strike the pleadings and enter final judgment for "failure to comply." If appellant has destroyed relevant and material information by destroying the file, and that information is so essential to the appellee's defense that it cannot proceed without it, then the striking of appellant's pleadings may be warranted. See Depuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3d DCA 1983). Alternatively, where a party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the...
To continue reading
Request your trial
-
Martino v. Wal-Mart Stores, Inc.
...So.2d 346 (Fla. 4th DCA 2001); Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701, 703 (Fla. 4th DCA 1995); N.H. Ins. Co. v. Royal Ins. Co., 559 So.2d 102, 103 (Fla. 4th DCA 1990). Like these many other jurisdictions, we believe that the adverse inferences and the myriad of other available ......
-
Fla. Bar v. Adams
...(Fla. 4th DCA 1998) ; Fraser v. Security and Investment Corporation, 615 So.2d 841 (Fla. 4th DCA 1993) ; New Hampshire Ins. Co. v. Royal Ins. Co., 559 So.2d 102 (Fla. 4th DCA 1990). In addition, the wealth of testimony provided by Sergeant Fernandez in various forums before these proceeding......
-
Federal Ins. Co. v. Allister Mfg. Co.
...destroy evidence, the court should not have imposed the "ultimate sanction of dismissal" citing New Hampshire Insurance Company v. Royal Insurance Company, 559 So.2d 102, 103 (Fla. 4th DCA 1990). In that case an insurer responded to a request to produce its underwriting file by stating that......
-
Martino v. Wal-Mart Stores, Inc.
...evidence is in the possession of a party and that party either loses or destroys the evidence. Cf. [New Hampshire Ins. Co. v. Royal Ins. Co., 559 So.2d 102, 103 (Fla. 4th DCA 1990)]. Martino, 835 So.2d at 1257. I have carefully read the Fourth District's earlier decision in New Hampshire In......
-
Deconstructing damages for destruction of evidence: Martino eradicates the first-party tort of spoliation of evidence.
...Justice Wells' specially concurring Martino opinion referenced the Fourth District's earlier decision in New Hampshire Insurance Co., 559 So.2d 102 (Fla. 4th DCA 1990), to which the Fourth District cited for the proposition that an adverse inference does not require a duty to preserve, and ......
-
Spoliated evidence: better than the real thing?
...for the ramifications of their act." 427 So. 2d at 308. Similarly, the Fourth District in New Hampshire Ins. Co. v. Royal Ins. Co" 559 So. 2d 102 (Fla. 4th DCA 1990), focused on the importance of the evidence rather than on whether the destruction was in bad If appellant has destroyed relev......
-
Spoliation of evidence: a double-edged sword.
...(4) Id.; Lewis v. Darce Towing Company, 94 F.R.D. 262 (W.D. La. 1982). (5) New Hampshire Insurance Company v. Royal Insurance Company, 559 So. 2d 102 (Fla. 4th D.C.A. 1990) (striking of pleadings unwarranted); Depuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d D.C.A. 1983) (striking of pleadings......
-
The wild and wooly world of inference and presumptions - when silence is deafening.
...to, infer that the ladder, if produced, would have been unfavorable to the defendant. (28) New Hampshire Ins. Co. v. Royal Ins. Co, 559 So. 2d 102, 103 (Fla. 4th DCA 1990), goes one step further. Following entry of an order compelling responses to discovery requests, the defendant filed a r......