Faris v. Southern-Owners Ins. Co.
| Decision Date | 09 March 2018 |
| Docket Number | Case No. 5D16–4037 |
| Parties | Robert William FARIS, Appellant, v. SOUTHERN–OWNERS INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Chad A. Barr and Heather M. Kolinsky, of Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellant.
Scott A. Cole, Melinda S. Thornton, and David C. Borucke, of Cole, Scott & Kissane, P.A., Miami, for Appellee.
Robert William Faris appeals the trial court's dismissal of his complaint with prejudice. Faris argues that the trial court abused its discretion when it dismissed his breach of contract claim against Southern–Owners Insurance Company ("Southern–Owners") as a sanction for proceeding with surgery in defiance of court orders. We agree with Faris that the sanction was too severe, and we therefore reverse and remand for further proceedings.
Faris was injured in an accident on September 12, 2014, when an uninsured motorist ran into his car as they were both driving north on I–85 through Georgia. Faris had an auto-insurance policy through Southern–Owners with $250,000 in uninsured-motorist coverage. Southern–Owners denied the claim, and Faris filed a breach of contract complaint. Discovery took place over the next eight months: Southern–Owners subpoenaed Faris's medical records and requested his prior medical history, employment history, and insurance-claim history.
On July 22, 2016, as a courtesy, Faris notified Southern–Owners that he would be undergoing spinal surgery on August 8 to fix a herniated disc
. In response, Southern–Owners requested a compulsory medical examination ("CME") and provided two dates that fell before August 8. Faris notified Southern–Owners that he was not available for either of the dates provided, and Southern–Owners filed a motion to compel the CME, arguing that it had insufficient time to schedule a CME before Faris's surgery. After a hearing, the trial court granted the motion to compel and ordered Faris either to undergo a preoperative CME or postpone the surgery. The order also compelled Southern–Owners to provide Faris with two additional CME dates.
Southern–Owners, however, provided Faris with only one additional date falling before his scheduled surgery, August 3, and gave Faris less than twenty-four hours to confirm the appointment. Faris, who works for the City of Orlando, requested time off; but before it was approved, Southern–Owners informed him that the date was no longer available. Southern–Owners then provided Faris with three more CME dates, each falling after the already-scheduled spinal surgery.
One week before the surgery, Faris filed a motion for a protective order allowing the CME to occur after the surgery, arguing that Southern–Owners had failed to present evidence that it would be prejudiced by a post-operative CME. Faris also argued that his preoperative x-rays, MRIs, and other records were already available. Southern–Owners contended that a preoperative CME was necessary to determine the nature and extent of the injuries Faris suffered in the accident. The trial court denied Faris's motion and ordered him to cancel the August 8 surgery.
On August 8, Faris underwent the surgery. Southern–Owners filed a motion for sanctions, arguing that Faris had willfully and contumaciously disregarded the trial court's orders, and requested that the trial court dismiss Faris's complaint with prejudice. At the hearing, Faris argued that he tried to schedule the preoperative CME for August 3 but was unable to get his request approved in time, that Southern–Owners had failed to provide two preoperative CME dates as ordered by the court, that Faris did not have a history of discovery abuses, and that delaying the surgery would have subjected him to needless pain and suffering. Faris filed his union contract, which specified that all personal leave must be requested in advance and approved, even emergencies. Finally, Faris argued that when he told Southern–Owners he was in the process of getting approval for the August 3 CME, Southern–Owners should have scheduled the appointment instead of letting it lapse.
The trial court granted the motion for sanctions, finding that Southern–Owners's failure to provide additional dates did not excuse Faris's refusal to postpone the surgery. The trial court found that Faris showed a "willful, contumacious, and blatant disregard" of court orders by proceeding with surgery and that Faris had prejudiced Southern–Owners by preventing "a pre-surgical CME on the alleged physical injuries." The trial court therefore dismissed Faris's complaint with prejudice.
On appeal, Faris contends that the trial court's dismissal with prejudice was too harsh a sanction in light of his infraction. Faris argues that because Southern–Owners failed to show it was prejudiced by his noncompliance, dismissal with prejudice was too severe. While Faris acknowledges that, as one of the Kozel 1 factors, demonstrating prejudice was not required in this instance, he maintains that the factors are instructive. He contends that his preoperative medical records enabled Southern–Owners to determine the extent of the injuries he suffered as a result of the accident.
A trial court's decision to dismiss an action with prejudice as a sanction is reviewed for abuse of discretion. Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004). In exercising its discretion, a trial court must balance the impact of the sanction against the severity of the infraction. Id. at 499. Therefore, as the severest possible sanction, dismissal with prejudice "should be employed only in extreme circumstances."
Id. at 495. While a litigant's willful disregard of trial court authority justifies dismissal with prejudice as a sanction, it does not require it. See id. The purpose of sanctions is not to punish but rather "to ensure compliance with the rules of civil procedure." Zafirakopoulous v. S. Miami Int'l...
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