U.S. Fire Ins. Co. v. C & C Beauty Sales, Inc.

• Decision Date: 08 May 1996
• Docket Number: No. 95-548,95-548
• Citation: 674 So.2d 169
• Parties: 21 Fla. L. Weekly D1090 UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. C & C BEAUTY SALES, INC., Appellee.
• Court: Florida District Court of Appeals

Page 169

674 So.2d 169

21 Fla. L. Weekly D1090

UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. C & C BEAUTY SALES, INC., Appellee.

No. 95-548.

District Court of Appeal of Florida Third District.

May 8, 1996.

Rehearing Denied June 12, 1996.

An Appeal from the Circuit Court for Dade County, Thomas Spencer, Judge.

Richard A. Sherman and Rosemary B. Wilder, Ft. Lauderdale; Boehm, Brown, Rigdon, Seacrest & Fischer and Janice A. Kelly, Daytona, for appellant.

Blaxberg, Grayson & Singer and Moises T. Grayson, Miami, for appellee.

Before BARKDULL, GREEN and FLETCHER, JJ.

BARKDULL, Judge.

The appellant United States Fire Insurance Company (U.S. Fire), appeals an order striking its pleadings and entering a default judgment against it as a sanction for failure to comply with court orders compelling discovery. It also appeals an order entering judgment for the appellee, C & C Beauty Sales, Inc. (C & C), in the amount of $486,259.82 as liquidated damages. We affirm in part and reverse in part.

U.S. Fire insured C & C's inventory of perfumes. When C & C sustained a theft loss, it made a claim on its policy with U.S. Fire. U.S. Fire sent its accountants to C & C's warehouse to investigate the loss. U.S. Fire then denied the claim and C & C filed a complaint for breach of contract and unfair claim settlement. C & C requested production of all of the work papers of U.S. Fire's accountants that related to the theft. Over the course of the next year, the parties skirmished over discovery. C & C filed five motions to compel production of the accountants' work papers. The motions were granted, but U.S. Fire still did not comply. The item specifically sought was a "roll forward," which was a calculation of the value of the inventory lost in the theft. U.S. Fire contended that only a preliminary roll forward had been completed and that a complete roll forward was never done by the accountants. ¹ At the hearing on the fifth motion to compel, the trial judge entered an order striking U.S. Fire's pleadings as a sanction for failure to comply with the prior court orders to produce the roll forward. The order contained a purge provision by which U.S. Fire could purge the effects of the order by fully complying within ten days and by paying one hundred and seventy five dollars in attorney's fees. U.S. Fire filed a notice of compliance within ten days, but C & C contended that the roll forward had still not been produced. Another hearing was held during the next month at which time C & C informed the judge that U.S. Fire had still not complied with the court's order. The judge held that the pleadings would remain stricken but that U.S. Fire would have an additional ten days to purge by supplying for deposition the person who had prepared the roll forward. U.S. Fire filed an objection and motion for a protective order in response to a deposition upon written questions in reference to the roll forward, but before the hearing was held, it produced the roll forward and the successor judge held accordingly that the issue was moot.

At a later evidentiary hearing on the issue of whether or not the pleadings would remain stricken, the trial judge found that the "predecessor judge made a finding there was willful disregard of the rules of discovery. And I have heard nothing today that would permit me to have a different opinion." A default judgment and final judgment for $486,259.82 as liquidated damages was entered. That figure was derived from C & C's complaint and the proof of loss attached to the complaint.

U.S. Fire first contends that the order striking its pleadings and entering a default judgment was far too severe a sanction under the circumstances and cannot be upheld under Florida law. It claims alternatively that it produced the roll forward within the first purge period, but also that it produced this "one piece of paper" late. It argues that the trial judge was confused as to the difference between a preliminary roll forward, which was timely produced, and a complete roll forward, which did not exist and had never been done by the accountants.

Without belaboring the facts in this case, suffice it to say that we are unwilling to interfere with the trial judge's finding that the requested roll forward had not been produced within the purge period. We find nothing in this record to indicate that the circumstances were otherwise. It appears that counsel for U.S. Fire was not being completely candid with the court when she repeatedly stated that "there are no roll forwards." Also worthy of note is the fact that two trial judges made the same determination on three separate occasions. Furthermore, the six page order striking the pleadings contains a detailed statement of all of the actions that led to the imposition of the sanctions. It states that U.S. Fire had shown a willful, deliberate and contumacious disregard of the court's previous orders and the facts in this case support that determination. ² In short, this order striking...