Appellate Case Law Update – Dismissal for Failure to Submit to Pre-Surgery CME too Harsh

March 27, 2018 by on News

The Fifth District Court of Appeal recently reviewed a dismissal with prejudice as a sanction for failure to comply with a trial order in Faris v. Southern-Owners Ins. Co., 5D16-4037 (Fla. 5th DCA Mar. 9, 2018). Plaintiff, the injured motorist, notified the defendant, his UM carrier, that he would be undergoing spinal surgery. The carrier requested a pre-surgery CME, but scheduling proved difficult.  The carrier’s motion to compel CME resulted in an order that plaintiff undergo a preoperative CME or postpone the surgery.  It also compelled the carrier to provide the plaintiff with two additional CME dates. The carrier only provided one date on which the plaintiff was ultimately unavailable. The plaintiff then moved for a protective order allowing the CME to occur post-surgery.  The Court denied the motion and ordered the plaintiff to cancel the schedule surgery.  Plaintiff went forward with the surgery despite the order.  The carrier then moved to dismiss based on Plaintiff’s willful and contumacious disregard of the order.  The court granted this motion finding that the plaintiff showed a “willful, contumacious, and blatant disregard” of the court order by proceeding with the surgery.

The plaintiff argued on appeal that dismissal was too harsh of a sanction, and the appellate court agreed.  “[D]ismissal with prejudice is proper only if a less severe sanction would fail to achieve a just result.”  The appellate court found, in the first instance, that the plaintiff had no legal obligation to notify the carrier of his surgery, and that had he not, the carrier would be in the same place it finds itself on appeal - with only a post-surgery CME.  Next, both parties failed to comply with court orders: the carrier provided one, but not two additional CME dates; and plaintiff went forward with the surgery.  Further, the plaintiff attempted to get off work to attend the pre-surgery CME but was unable to receive timely approval to take off work. Furthermore, plaintiff’s argument that he was in extreme pain was “both compelling and mitigating.” Considering the circumstances, dismissal was simply too harsh of a sanction, and the order of dismissal was an abuse of discretion.

The most important lesson to take from Faris is that careful consideration should be given when seeking sanctions against a party for noncompliance with court orders.  While dismissal may be the ultimate goal, such a harsh sanction may not be commensurate with the violation.  It is also important to show that you did not violate any orders of the Court yourself. 

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.


Kansas R. Gooden
Partner / Practice Group Leader
Direct: 904.493.3755

Kevin D. Franz
Senior Associate
Direct: 954.622.0093

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