NEW HAMPSHIRE INSURANCE COMPANY, INC., APPELLANT,
v.
ROYAL INSURANCE COMPANY, APPELLEE
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New Hampshire Insurance Company appealed the trial court's order striking its pleadings and entering final judgment against it for alleged failure to comply with discovery orders. The Fourth District Court of Appeal reversed, holding that the appellant did comply with discovery by responding that its underwriting file had been destroyed, and that striking pleadings as a sanction requires a showing of deliberate and willful failure to comply and prejudice to the opposing party.
The court reversed, holding that the appellant complied with the discovery order by providing a response (albeit one stating the files were destroyed), and that striking pleadings as a sanction requires a showing of deliberate and willful failure to comply with discovery and prejudice to the opposing party. The proper remedies when a party destroys relevant evidence are either striking pleadings if the destroyed information is essential and the party cannot proceed without it, or drawing an adverse inference that destroyed evidence would be unfavorable to the party failing to produce it.
[1] Striking a party's pleadings and entering final judgment is an extreme sanction that should be reserved for cases demonstrating a deliberate and willful failure to comply…
[2] A party's response to a discovery request, even if unsatisfactory to the opposing party, constitutes compliance and precludes striking pleadings for non-compliance.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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”
Establishes the standard requiring deliberate and willful failure, not mere non-compliance, to justify the sanction of dismissal
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Join FLexlaw to unlock all legal intelligenceThe trial court ordered New Hampshire Insurance to comply with discovery within ten days. The discovery request, originally made three months earlier,…
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PER CURIAM.
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 Appel- lee 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 eases 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 party failing to produce it. Valcin v. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3d DCA 1984), modified, Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla.1987).
Thus, the court could indulge such an inference on the facts of this case.
However, for all we know, any evidence which might have been contained within those files might be legally irrelevant to the issues framed in the pleadings. Without a showing of prejudice to appellee on this record, we hold that the trial court reversibly erred when it entered final judgment in favor of appellee.
Reversed and remanded for further proceedings consistent with this opinion,
STONE and WARNER, JJ„ concur. POLEN, J., dissents without opinion.
. We do not deem the fact that the attorney signed the answers rather than the party as a "failure to respond” sufficient to justify a dismissal. At most, it renders the answers incomplete and would not justify an order of default without a further attempt at compliance. Cf. Venus Laboratories, Inc. v. Katz, 557 So. 2d 110 (Fla. 3d DCA 1990); Summit Chase Condominium Ass'n, Inc. v. Protean Investors, Inc., 421 So. 2d 562 (Fla. 3d DCA 1982).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ronna Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005)…preserve evidence. Rather, an adverse inference may arise in any situation where potentially self-damaging 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 Insurance Co., to which it cites, and I do not find a basis for the above statement in that case. Nor have I found…
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Jordan v. Masters, 821 So. 2d 342 (Fla. 4th DCA 2002)…withheld evidence would be unfavorable to the party failing to produce it.” Jordan requested the instruction based upon Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla.1987), and New Hampshire Insurance Co. v. Royal Insurance Co., 559 So. 2d 102 (Fla. 4th DCA 1990). In Valcin, the court approved the adoption of a rebuttable presumption of negligence in a medical malpractice case where operative notes were either missing or inadequate due to the negligence of the hospital or doctors, if the…
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Ronna Martino and Raymond Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003)…in, 507 So. 2d 596 (Fla.1987); Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 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 sanctions adequately remedy the wrong suffered by the plaintiff as the result of the loss of the evidence. Conseq…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Pub. Health Tr. OF Dade Cnty. v. Gregoria Valcin, 507 So. 2d 596 (Fla. 1987)
- Summit Chase Condo. Ass'n, Inc. v. Protean Invs., Inc., 421 So. 2d 562 (Fla. 3d DCA 1982)
- Gregoria Valcin and Gerard Valcin v. Pub. Health Tr. OF Dade Cnty., 473 So. 2d 1297 (Fla. 3d DCA 1984)
- DePUY, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983)
- Venus Labs., Inc. v. Katz, 557 So. 2d 110 (Fla. 3d DCA 1990)