Preview
Filing # 113343510 E-Filed 09/14/2020 05:05:25 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE 19-026009 (03)
CHANDLER JEAN BAPTISTE,
Plaintiff,
vs.
CITY OF SUNRISE AND
FRANK ANTHONY OTELLO,
Defendants.
/
PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES
NOW COMES the Plaintiff, CHANDLER JEAN BAPTISTE, by and through his
undersigned attorney, pursuant to Florida Rules of Civil Procedure 1.380(a) files this Motion to
Compel Defendant, FRANK ANTHONY OTELLO, to respond to the Plaintiff's discovery
propounded and as grounds thereof states as follows:
1. This is a case in which the plaintiff has alleged damages against the defendants as
a result of injuries sustained in a motor vehicle collision.
2. The defendant, CITY OF SUNRISE was the owner of the motor vehicle which
struck the Plaintiff. The co-Defendant FRANK ANTHONY OTELLO was the
operator of that motor vehicle which struck the Plaintiff.
3. Plaintiff propounded discovery in the form of Request for Production to
Defendant, FRANK ANTHONY OTELLO, pursuant to Florida Rules of Civil
Procedure 1.340 and 1.350.
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/14/2020 05:05:25 PM.****a. Specifically, the Plaintiff requested a copy of any and all insurance policies
that were in effect on 8/22/2018.
i.
ii.
iii.
iv.
The Defendant FRANK ANTHONY OTELLO responded by
referencing the co-defendant’s City of Sunrise’s insurance policy but
neglected to address his own personal automobile liability insurance
policy.
The co-Defendant CITY OF SUNRISE has denied that the Defendant
Frank Othello was in the “course and scope” of employment when the
subject accident occurred. (See Defendant, CITY OF SUNRISE’s
Response to request for admission number 1).
Since the CITY OF SUNRISE has denied that co-Defendant FRANK
ANTHONY OTELLO was in the course and scope of his employment
it can be reasonably presumed that co-Defendant FRANK ANTHONY
OTELLO’s personal automobile liability insurance would provide
primary or secondary coverage for this collision.
If the Defendant FRANK ANTHONY OTELLO is unable to produce
such insurance policy documents then he may comply with the
discovery request by responding to Plaintiff's Interrogatory number 4
(requesting similar information).
b. Additionally, the Plaintiff requested photographs of the damaged vehicles
which are in the possession of Defendant FRANK ANTHONY OTELLO.i.
ii.
The Defendant FRANK ANTHONY OTELLO responded by stating
‘photographs are available for review upon reasonable notice.” (See
Defendant response to request for admission number 1).
The Defendant’s response creates an unreasonable burden on the
Plaintiff. Such photographs are presumably digitized and can easily be
provided to Plaintiff’s counsel via email or downloaded onto a storage
device or photocopied and the reasonable cost will be paid by the
Plaintiff.
c. Additionally, the Plaintiff requested repair estimates of the vehicles involved
in the collision.
i.
ii.
iii.
The Defendant FRANK ANTHONY OTELLO filed a privilege log
indicating that the appraisals of the vehicle and the photographs of the
vehicles were subject to the work product privilege and attorney-client
privilege.
It is unusual that the defendant driver is asserting a privilege for
documents obtained or created by the defendant-owner and likely does
not have the requisite standing to present such a third-party privilege.
Notwithstanding the forgoing it is common-practice in every-single
motor vehicle insurance claim to obtain photographs and appraisals to
properly and accurately adjust the claim. It is entirely disingenuous for
the Defendant to assert that the common practice obtaining an
appraisals and photographs was in anticipation of litigation or that they
were obtained at the behest of defense counsel.d. Additionally, the Plaintiff presented interrogatories to Defendant FRANK
ANTHONY OTELLO requesting personal information material and relevant
to the Plaintiff's claim.
i. The defendant FRANK ANTHONY OTELLO has refused to respond
to numerous interrogatories citing the confidentiality of public
employees pertaining to firefighters and paramedics. F.S. 119.071(4)
ii. The co-defendant CITY OF SUNRISE has denied that co-defendant
FRANK ANTHONY OTELLO was in the course and scope of his
employment as a firefighter or paramedic and therefore such
confidentiality is inapplicable to this case. Furthermore, the Defendant
has not stated the basis nor the specific statutory exemption which
applies to the Defendant FRANK ANTHONY OTELLO. Defendant
FRANK ANTHONY OTELLO is presumably a employed by the
Defendants CITY OF SUNRISE’s Fire Department but he has not
asserted that he is in compliance with the statutory pre-requisite for
confidentiality as required by F.S. 119.071(4) and F.S. 633.408.
e. Additionally, the Plaintiff presented interrogatories to defendant FRANK
ANTHONY OTELLO concerning his use of eyeglasses, contact lenses and/or
hearing aids.
i. The defendant FRANK ANTHONY OTELLO has refused to respond
to the interrogatory claiming a constitutional right to privacy and the
public employee confidentiality statute F.S. 119.071.ii. This is a motor vehicle collision in which the Defendant has disputed
liability. The Defendant FRANK ANTHONY OTELLO’s position is
that the Plaintiff was, “driving at a high rate of speed and was over the
speed limit”. His basis for this conclusion is presumed to be his
personal observations and his involvement in the collision.
iii. If the Defendant FRANK ANTHONY OTELLO is relying on his five
external human senses to conclude that the Plaintiff was negligent
(driving at a high rate of speed) then The Plaintiff should be permitted
to cross-examine the Defendant on the condition of his senses at the
time of the collision.
4. Florida Rule of Civil Procedure 1.380(a)(2) provides in pertinent part:
. . . (If) a party fails to answer an interrogatory submitted under
rule 1.340, or if a party in response to a request for inspection
submitted under rule 1.350 fails to respond that the inspection will
be permitted as requested . . . the discovering party may move for
an order compelling an answer . . .
5. The aforesaid discovery is material, relevant and necessary to the prosecution of
this claim.
5. The Plaintiff's position has been prejudiced by the Defendant’s failure to properly
and timely respond to the discovery.
WHEREFORE the Plaintiff, CHANDLER JEAN BAPTISTE, requests this Court enter
an order compelling the Defendant, FRANK ANTHONY OTELLO, to fully respond to the
Plaintiffs discovery.
CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded by
Electronic Mail to: E. BRUCE JOHNSON, ESQ., JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER, & HOCHMAN, P.A., Attorneys for Defendant, CITY OF SUNRISE,
johnson@jambg.com, and OSCAR E. MARRERO, ESQ., MARRERO & WYDLER, Attomeys
for Defendant, FRANK ANTHON OTELLO, oem@marrerolegal.com, this 14 day of
September, 2020.
MILLER LAW GROUP, P.A.
1937 East Atlantic Boulevard, Suite 204
Pompano Beach, Florida 33060
Telephone: (954)972-8011
Telefax: (954)782-3636
Primary E-Mail: litigation@millerlaw legal
/s/ Mohammed Haider
By:
MOHAMMED HAIDER
Florida Bar No. 1003274
Preview
Filing # 113343510 E-Filed 09/14/2020 05:05:25 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 19-026009 (03) CHANDLER JEAN BAPTISTE, Plaintiff, vs. CITY OF SUNRISE AND FRANK ANTHONY OTELLO, Defendants. / PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES NOW COMES the Plaintiff, CHANDLER JEAN BAPTISTE, by and through his undersigned attorney, pursuant to Florida Rules of Civil Procedure 1.380(a) files this Motion to Compel Defendant, FRANK ANTHONY OTELLO, to respond to the Plaintiff's discovery propounded and as grounds thereof states as follows: 1. This is a case in which the plaintiff has alleged damages against the defendants as a result of injuries sustained in a motor vehicle collision. 2. The defendant, CITY OF SUNRISE was the owner of the motor vehicle which struck the Plaintiff. The co-Defendant FRANK ANTHONY OTELLO was the operator of that motor vehicle which struck the Plaintiff. 3. Plaintiff propounded discovery in the form of Request for Production to Defendant, FRANK ANTHONY OTELLO, pursuant to Florida Rules of Civil Procedure 1.340 and 1.350. 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/14/2020 05:05:25 PM.****a. Specifically, the Plaintiff requested a copy of any and all insurance policies that were in effect on 8/22/2018. i. ii. iii. iv. The Defendant FRANK ANTHONY OTELLO responded by referencing the co-defendant’s City of Sunrise’s insurance policy but neglected to address his own personal automobile liability insurance policy. The co-Defendant CITY OF SUNRISE has denied that the Defendant Frank Othello was in the “course and scope” of employment when the subject accident occurred. (See Defendant, CITY OF SUNRISE’s Response to request for admission number 1). Since the CITY OF SUNRISE has denied that co-Defendant FRANK ANTHONY OTELLO was in the course and scope of his employment it can be reasonably presumed that co-Defendant FRANK ANTHONY OTELLO’s personal automobile liability insurance would provide primary or secondary coverage for this collision. If the Defendant FRANK ANTHONY OTELLO is unable to produce such insurance policy documents then he may comply with the discovery request by responding to Plaintiff's Interrogatory number 4 (requesting similar information). b. Additionally, the Plaintiff requested photographs of the damaged vehicles which are in the possession of Defendant FRANK ANTHONY OTELLO.i. ii. The Defendant FRANK ANTHONY OTELLO responded by stating ‘photographs are available for review upon reasonable notice.” (See Defendant response to request for admission number 1). The Defendant’s response creates an unreasonable burden on the Plaintiff. Such photographs are presumably digitized and can easily be provided to Plaintiff’s counsel via email or downloaded onto a storage device or photocopied and the reasonable cost will be paid by the Plaintiff. c. Additionally, the Plaintiff requested repair estimates of the vehicles involved in the collision. i. ii. iii. The Defendant FRANK ANTHONY OTELLO filed a privilege log indicating that the appraisals of the vehicle and the photographs of the vehicles were subject to the work product privilege and attorney-client privilege. It is unusual that the defendant driver is asserting a privilege for documents obtained or created by the defendant-owner and likely does not have the requisite standing to present such a third-party privilege. Notwithstanding the forgoing it is common-practice in every-single motor vehicle insurance claim to obtain photographs and appraisals to properly and accurately adjust the claim. It is entirely disingenuous for the Defendant to assert that the common practice obtaining an appraisals and photographs was in anticipation of litigation or that they were obtained at the behest of defense counsel.d. Additionally, the Plaintiff presented interrogatories to Defendant FRANK ANTHONY OTELLO requesting personal information material and relevant to the Plaintiff's claim. i. The defendant FRANK ANTHONY OTELLO has refused to respond to numerous interrogatories citing the confidentiality of public employees pertaining to firefighters and paramedics. F.S. 119.071(4) ii. The co-defendant CITY OF SUNRISE has denied that co-defendant FRANK ANTHONY OTELLO was in the course and scope of his employment as a firefighter or paramedic and therefore such confidentiality is inapplicable to this case. Furthermore, the Defendant has not stated the basis nor the specific statutory exemption which applies to the Defendant FRANK ANTHONY OTELLO. Defendant FRANK ANTHONY OTELLO is presumably a employed by the Defendants CITY OF SUNRISE’s Fire Department but he has not asserted that he is in compliance with the statutory pre-requisite for confidentiality as required by F.S. 119.071(4) and F.S. 633.408. e. Additionally, the Plaintiff presented interrogatories to defendant FRANK ANTHONY OTELLO concerning his use of eyeglasses, contact lenses and/or hearing aids. i. The defendant FRANK ANTHONY OTELLO has refused to respond to the interrogatory claiming a constitutional right to privacy and the public employee confidentiality statute F.S. 119.071.ii. This is a motor vehicle collision in which the Defendant has disputed liability. The Defendant FRANK ANTHONY OTELLO’s position is that the Plaintiff was, “driving at a high rate of speed and was over the speed limit”. His basis for this conclusion is presumed to be his personal observations and his involvement in the collision. iii. If the Defendant FRANK ANTHONY OTELLO is relying on his five external human senses to conclude that the Plaintiff was negligent (driving at a high rate of speed) then The Plaintiff should be permitted to cross-examine the Defendant on the condition of his senses at the time of the collision. 4. Florida Rule of Civil Procedure 1.380(a)(2) provides in pertinent part: . . . (If) a party fails to answer an interrogatory submitted under rule 1.340, or if a party in response to a request for inspection submitted under rule 1.350 fails to respond that the inspection will be permitted as requested . . . the discovering party may move for an order compelling an answer . . . 5. The aforesaid discovery is material, relevant and necessary to the prosecution of this claim. 5. The Plaintiff's position has been prejudiced by the Defendant’s failure to properly and timely respond to the discovery. WHEREFORE the Plaintiff, CHANDLER JEAN BAPTISTE, requests this Court enter an order compelling the Defendant, FRANK ANTHONY OTELLO, to fully respond to the Plaintiffs discovery. CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded by Electronic Mail to: E. BRUCE JOHNSON, ESQ., JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER, & HOCHMAN, P.A., Attorneys for Defendant, CITY OF SUNRISE, johnson@jambg.com, and OSCAR E. MARRERO, ESQ., MARRERO & WYDLER, Attomeys for Defendant, FRANK ANTHON OTELLO, oem@marrerolegal.com, this 14 day of September, 2020. MILLER LAW GROUP, P.A. 1937 East Atlantic Boulevard, Suite 204 Pompano Beach, Florida 33060 Telephone: (954)972-8011 Telefax: (954)782-3636 Primary E-Mail: litigation@millerlaw legal /s/ Mohammed Haider By: MOHAMMED HAIDER Florida Bar No. 1003274