April 2011 Legal News & Updates
Insurance Adjusters Beware—Read the Subpoena Duces Tecum
In Cartaya vs. Sanchez-Arias, the Hillsborough County Court entered sanctions against the defending insurance company after the insurance company failed to schedule a hearing on its Motion for Protective Order to be heard prior to the deposition of the company’s adjuster. The Court also sanctioned the insurance company because the adjuster appeared at the deposition without his claim file or claim notes, which the Plaintiff requested in its subpoena duces tecum. Based on this ruling, defending insurers should read subpoena duces tecums carefully, and prepare and set for hearing before their depositions any Motions for Protective.
Questionable Clinics That Should Be On Your Radar
As many adjusters adjusting claims in Florida know, there is certainly no shortage of clinics that will say anything to support a claimant and/or plaintiff’s claim—that is, diagnose and “allegedly” treat non-existent injuries, and even commit fraud by generating false medical records. Insurance companies have also routinely observed these clinics get away with this sometimes illegal activity with little or no interference from law enforcement.
Despite the fact the State rarely enforces its laws against insurance fraud as much as those in the insurance industry would like, many of these clinics perform another criminal act that exposes their fraudulent nature—drug dealing.
For approximately the last two years Hillsborough law enforcement has been working vigorously to shut down these so-called “pill mills,” which are clinics who supply prescription pain medications to addicts. The clinics in Hillsborough County the authorities have already closed include Superior Injury Center of Tampa, Habana Spine and Medical Center, and 1st Medical Group.
Based on this information, this firm recommends adjusters revisit their Hillsborough County claims in order to determine if any of the claimants treated for their injuries at any of these clinics. If so, then the adjuster will have additional ammunition for the defense of the claim.
SHM Wins Another Motion to Dismiss for Fraud Upon the Court
When a defendant moves to dismiss a lawsuit because the plaintiff has committed a fraud upon the court, the defendant is basically asking the judge to sit in the shoes of the jury in order to pass judgment on the plaintiff’s credibility. Since such a motion contradicts the long line of jurisprudence in which our legal system delegates the judging of a plaintiff’s credibility to the trier of fact (who in most circumstances is a jury), most judges are reluctant to grant such motions.
Despite the obstacles standing in the way of obtaining an Order dismissing a case for fraud upon the court, Scarborough Hull & Miller has been extremely successful in obtaining such Orders. In fact, in April of 2011, Kevin M. Davis of Scarborough Hull & Miller not only obtained a dismissal based on the plaintiff’s fraud, but even an Order permitting the firm’s client to pursue fees and costs against the plaintiff pursuant to Section 57.105, Florida Statutes.
In the Hillsborough County case of Burns vs. Mitchell, the Plaintiff alleged to have suffered a knee injury after being stuck by a taxicab driven by the Defendant. Vigorous investigation, however, uncovered two witnesses, who attested under oath the Plaintiff struck himself in the knee with a crowbar in order to “invent” a claim against the Defendant.
The Defendant then sought dismissal for fraud and for sanctions upon learning this material. The Plaintiff’s attorney subsequently withdrew—leaving the Plaintiff unrepresented for the hearing. Since the Plaintiff neither filed any response, nor appeared for the hearing, the Pinellas County Court dismissed the action for fraud, and issued an order entitling the Defendant to fees and costs.