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Florida Fifth DCA reverses trial court's dismissal of plaintiff's complaint with prejudice as a sanction for proceeding with surgery in defiance of court orders

On March 9, 2018, in Faris v. Southern-Owners Insurance Company, No. 5D16-4037, the Florida Fifth DCA reversed a trial court’s dismissal with prejudice of the plaintiff’s complaint in a first party uninsured motorist (UIM) breach of contract case. The trial court had dismissed the plaintiff’s complaint as a sanction for the plaintiff having proceeded with surgery despite a court order that required the plaintiff to undergo a preoperative compulsory medical examination (CME) or postpone the surgery until after the CME could be performed. The Fifth DCA cited Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004) for the standard that a decision to dismiss with prejudice is a sanction reviewed for abuse of discretion and that a trial court must balance the impact of the sanction against the severity of the infraction. The Court quoted Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993) for the principle that dismissal with prejudice is proper only if a less severe sanction “would fail to achieve a just result,” which as the Fifth DCA observed, is not punishment of the party but ensuring compliance with the rules of civil procedure. The Fifth DCA noted that the plaintiff had provided notice to the defendant of his scheduled surgery even though he was not required to do so, that the defendant had also violated the court’s order by providing the plaintiff with only one available date rather than two in which to conduct the CME, that the plaintiff had been provided with only 24 hours to confirm the date proposed by the defendant, and that the plaintiff had tried to schedule the CME on his own after the defendant let the proposed CME date lapse. The Fifth DCA also noted that the plaintiff’s noncompliance with the trial court’s order was not part of a broader pattern of misconduct, and that if the plaintiff had never informed the defendant of the surgery the defendant would have been in the same position. The Fifth DCA concluded that the plaintiff’s noncompliance did not amount to such blatant disregard of authority, bad-faith conduct, or gross indifference to the trial court’s orders as to evince “deliberate callousness,” citing Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983); Babe Elias Builders,Inc. v. Pernick, 765 So. 2d 119, 121 (Fla. 3d DCA 2000), and that dismissal with prejudice should be reserved for the most severe infractions.