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Filing# 141888271 E-Filed 01/12/2022 05:58:26 PM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT, IN AND
FOR BROWARD COUNTY, FLORIDA
MITCHELLE R. ORDONEZ and
CASE NO.: CACE-19-021656
DOREEN B. ORDONEZ,
Plaintiffs,
VS.
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
i
DEFENDANT'S MOTION FOR INVOLUNTARY DISMISSAL WITH PREJUDICE
COMES NOW Defendant, UNIVERSAL PROPERTY AND CASUALTY INSURANCE
COMPANY (hereinafter
"Universal"),
who, by and throughthe undersignedcounsel and pursuant
to Fla. R. Civ. P. 1.420, hereby files this Motion For InvoluntaryDismissal With Prejudiceofthis
action,and as grounds therefore states as follows:
I.
INTRODUCTION
On June 3, 2019, Plaintiffs notified Universal of an allegedloss that occurred on April 5,
2019. During Universal's investigationof the Claim, Plaintiffs,
by and through their counsel,
submitted a plumbing video in support of their Claim on or about July29, 2019. The video was
date stamped October 18, 2018. Universal relied in part on this video when Universal denied
Plaintiffs' Claim.
Throughout the course of discoveryin this matter, Universal made numerous requests for
any video in Plaintiffs' possession.Until Plaintiff,
Mitchelle Ordonez's November 10, 2021
deposition--whichhad to be compelledby this Court-Universal was unaware ofthe existence of
any other video. At the deposition,Plaintiffs' counsel denied knowledge of the October 18, 2018
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/12/2022 05:58:26 PM.****
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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video and displayeda snippetof a video allegedlytaken by one of Plaintiffs' plumbers after the
allegeddate of loss. To date,Plaintiffs have not disclosed the video.
Plaintiffs' submission ofthe 2018 Video, their failure to disclose the existence ofthe other
videos priorto November 10, 2021, and their subsequent failure to provide Universal a copy of
the videos,has severelyprejudicedUniversal by:
1.
ContaminatingUniversal's claims investigation
process and causingUniversal to deny the
Claim based on faultyinformation;
2.
Lulling Universal into relyingon "evidence" that the damaged drainage preceded the
claimed date of loss by several months;
3.
Hindering Universal's abilityto settle this litigation;
and
4.
PermittingUniversal to relyon faultyinformation as it makes litigation
decisions-most
pointedlythe decision to hire experts and engage in other discoveryefforts.
Based on the substantial prejudicethat Plaintiffs' failure to disclose known and relevant evidence
to Universal despiterepeatedrequests for the same, Universal now moves to strike Plaintiffs'
pleadingsor, in the alternative,
for relief that includes:
1.
Compelling Plaintiffs to provideUniversal with a copy ofthe videos;
2.
Continuingthis matter to afford Universal the opportunityto obtain a causation expert who
can analyzethe video and other evidence and render an opinion;
3.
Re-opening discoveryto afford Universal the opportunityto discover facts and information
that this newly revealed evidence bears upon;
4.
PermittingUniversal to present evidence of the disclosure of the October 18, 2018 video
to the jury as evidence that Universal did not breach the insurance agreement; and
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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5.
LimitingPlaintiffs' entitlement to attorney's
fees based on the additional efforts Plaintiffs'
and Plaintiffs' counsel obfuscation has caused and will continue to cause should this Court
not dismiss this matter.
II.
FACTUAL BACKGROUND
1.
This is a first-party
property action filed by Plaintiffs againstUniversal,alleging
property damage due to an allegedplumbing overflow that reportedlyoccurred on or about April
5,2019.
2.
This matter is currentlyset for trial beginningDecember 13, 2021.
3.
Universal first learned of the allegedloss on June 3, 2019, when Plaintiffs,by and
through their counsel, initiated the underlyingclaim (the"Claim").
4.
On July 18, 2019, Plaintiffs' counsel sent documents responsiveto Universal's
requests duringthe adjustmentof the Claim.
5.
Attached to Plaintiffs' electronic correspondencewas a cover letter,
also dated July
18, 2019, which listed the documents contained within the link:
"A copy ofthe repairestimate preparedby SpecialtyPublic Adjusters,Inc.;A copy
of the invoice from R&I Plumbing Service,Corp.; A check from the Insureds to
R&I Plumbing Service,Corp. for partialpayment; A copy of the invoice from
Monopoly Plumbing; 76 photographs depictingsome ofthe damages to the above-
mentioned
..
property;
See attached Exhibit A - Plaintiffs'
Cover Letter.
6.
However, the documents were contained in a time-sensitive link that expiredafter
seven days.
7.
Universal's adjuster,Eduardo Campos, responded to Plaintiffs' correspondence
and noted that the link expiredbefore he was able to view and/or download any documents.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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8
On July26, 2019, Plaintiffs' counsel sent another time-sensitive link from which
Mr. Campos downloaded all items included. See attached Exhibit B - Plaintiffs'
Document
Production Correspondence.
9-
The July26, 2019 link included a plumbing video (the"2018 Video").
10.
The 2018 Video, the content of which is consistent with the facts of this case, is
date stamped October 1%,101%. See Affidavit
ofEduardo Campos to befiledunder separate cover.
11.
The 2018 Video at 6 min. 39 seconds revealed a hole in the cast iron pipe at 43' 5":
01:52:12 PM / 10-19-2018
.-
Camera is in a water-
filled
hole
before
plumbing
line
is
flushed
to
reveal
contours of hole.
Tt.?. .
0:06:06
0:06:42
4@
Ga
10
30
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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01:52:17PM / 1?-19-2?18 ?
-
During flush, hole is
I,r
revealed.
Pointer
is
2018-10-19-13-46-05
directed at bottom lip
of
cast
iron
pipe.
0:06:11
0:06:37
+9
@@
2
10
30
1/'
...
12.
Universal relied,in part, on the video-including the existence of a hole in the cast
iron pipe as of October, 2018-when it denied the Claim. See 4#idavit ofEduardo Campos.
13.
After Universal denied Plaintiffs' Claim, this action ensued.
14.
On January 3, 2020, Universal served Plaintiffs with requests to produce that
included requests for all videos in Plaintiffs' possession.Plaintiffs did not provide any videos with
the documents produced in response to Universal's requests and answered the specificvideo
requests as follows:
3.
Copies of any and all photographs or videotape taken of Plaintiff(s)
home with
regard to any inspectionor testingperjormed by an expert or representativeofthe
Plaintijf(s)
afterthe date of loss as referenced in the Complaint. Please provide any
and all photographs in their native digitalform.
ANSWER:
Objection.This request, as phrased, is vague, and ambiguous.
Notwithstanding the foregoing objection,at this time, the documents responsiveto this
request currentlyin possessionof the Plaintiff are attached.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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8.
Copies ofany and all photographs, recordings or videotape showing the damage
which is being claimed in the Complaint and pursuant to the Policy.
ANSWER:
Objection.This request, as phrased, is vague, and ambiguous.
Notwithstanding the foregoing objection,at this time, the documents responsive to this
request currentlyin possession of the Plaintiff are attached.
See attached Exhibit C - Plaintiffs'
Responses to Universal's RFP's.
15.
On March 10, 2020, Plaintiffs submitted verified responses to Universal's
interrogatories.
Universal copied the substance of the Supreme Court approved initial
interrogatories
and requestedthat Plaintiffs identifyeach person who had possession,custody,or
control of any video pertainingto the Claim. Plaintiffs did not identifyany plumber or their
attorney as having any videos and referred Universal to the production documents that did not
contain any videos:
4.
Please state the name and address of every person known to you. your agents or your
attorneys, who have knowledge abotit or possession, custody or control ofany model, plat.
map, drawing, motion picmre, videotape, or photograph pertaining to any fact or issue
involved in this controversy, please describe as each what items such individualfs) have, the
name andaddress ofthe party who tookor prepared it and the date it was taken orprepared-
ANSWER:
Objection.
This
request,
as
phrased.
is
vague.
ambiguous.
Notwithstanding the foregoing objection,
Jogly Garcia
Specialty Public Adjusters
6625 Miami Lakes Drive, Suite 5 I 2,
Miami Lakes, Florida 33014
Javier Delgado
Hydro Restoration, LLC
15358 SW 51" Manor
Davie, Florida 33331
Please refer to the documents produced in Plaintiffs' response to Defendant's Request for
Production.
See attached Exhibit D - Plaintiffs'
Responses to Universal's Interrogatories.
16.
On September 20, 2021, Plaintiffs filed their Amended Witness and Exhibit List
and listed as an exhibit to be used at trial: "Any and all photographs and/or videos regardingthis
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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case." No specificvideo was listed on the list and Universal remains unaware of what video(s)
Plaintiffs' intent to relyon at trial.
17.
Thereafter Universal made several attempts to depose Plaintiffs.
18.
Discovery in this matter closed on October 30,2021.
19.
Universal was forced to move to compel Plaintiffs' depositionsand, on November
3, 2021, this Court entered an Order compellingthe depositions
by November 12,2021.
20.
Following the delay,Universal finallydeposed Plaintiff,Mitchelle Ordonez, on
November 10,2021.
21.
At the deposition,Plaintiff testified that the two plumbing companies who
performed work on the covered property after the allegedloss each conducted video inspections
ofthe plumbing lines:
21
Q.
So I'm going to share my screen with you.
22
At any time did either plumber do a video inspection
23
of your plumbing lines?
24
A.
I
believe so.
I
cannot remember.
So if
25
I
-- if there was -- there were videos I think we, we
1
gave it to our attorneys, but for sure I could recall
2
it
yeah
there two, two videos there.
Both,
3
both plumbers used videos to inspect the system.
4
Q.
Were you there both times when they were
5
actually performing the services?
6
A.
Yes.
M. Ordonez Depo. at 36:21-37:6.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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5
Q.
So going back to the plumbing work that
6
was done.
I
think have answered this, so I apologize
7
if I'm asking you again.
You did or did not see when
8
they did a video inspection of the pipes?
9
A.
I
don't know what they're doing up there,
10
but they said that they -- that they, they will do
11
the video.
So that's the first one.
The second one,
12
I
don't know what he did too, but he said he's going
13
to do the video.
M. Ordonez Depo at 39:5-13.
22.
During the deposition,Universals' counsel played a portionof the 2018 Video.
Thereafter,there was discussion over the contents of the video during which Plaintiffs' counsel
disclaimed knowledge of the 2018 Video, though the video had been given to Universal by
Plaintiffs' counsel.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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4
MS. LIMIA:
Were you able to get the
5
video?
6
MS. BOSTON:
I
do have the video, but
7
when I'm clicking on share now, it's not showing.
I
8
can see it.
So I m just trying to figure.
Maybe I
9
need to close out some windows.
Hold on.
There you
10
go.
Can you guys see the video?
11
MS. LIMIA:
YeS.
12
BY MS. BOSTON:
13
Q.
So Mr. Ordonez?
14
A.
Yes.
15
Q.
My million-dollar question is the video
16
that was provided from the plumber as you can see
17
here at the top, depicts the inside of your pipe at
18
the time of inspection and how long it takes them to
19
inspect it.
The date of the video is August 19th,
20
2018.
It's several months prior to the April, 2019
21
loss date.
Can you explain that?
22
A.
No,
I,
I
need to see the video.
I
need
23
to see that.
M. Ordonez Depo. at 59:4-23.
20
Q.
At any time as the date stamped on this
21
video, October 19th, 2018, did they perform plumbing
22
work at your home?
23
A.
No.
Not that date that I know of.
24
MS. LIMIA:
Now, and Counsel, I ve never
25
seen this video before.
That's why I was asking
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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1
because this is not the video that I have on file for
2
this one.
3
MS. BOSTON:
This is the video that was -
4
I'm pulling it from my claim file.
Do you want to
5
go off record on it we can talk about it?
I'll also
6
refer to any videos that I'll open from your link, as
7
well.
Could you guys just reset the link, so I'll
8
refer to that.
9
THE REPORTER:
Yeah,
I
believe Ms. Limia
10
is frozen.
11
MS. BOSTON:
Oh,
technical issues.
12
MS. LIMIA:
Sorry,
it kicked me out.
Can
13
you guys hear me?
14
THE REPORTER:
Yeah, we can hear you now.
15
MS. BOSTON:
It's one of those days.
16
Yeah.
So I've never seen that video before.
Before
17
right now.
18
MS. BOSTON:
As previously stated, that's
19
the video was provided during the adjustment of the
20
claim by the plumber.
That's fine.
I'm just going
21
to open up everything so we can go over everything.
22
The problem that I'm having is -- we can go off for a
23
minute.
M. Ordonez Depo. at 60:20-61:23.
23.
During the discussion, Plaintiffs' counsel also played a portionof a video. (M.
Ordonez Depo. at 61:15-17).It is believed that the plumbing video was created by R&I Plumbing
Service,Corp. However, Universal lacks sufficient evidence to ascertain the validityof such video
as it has never been produced to Universal during the adjustmentof Plaintiffs' claim, nor has it
been produced in discovery.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
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24.
Prior to the deposition,neither the plumbing video displayedat the depositionnor
the other plumbing video that Plaintiff acknowledged the existence of had ever been disclosed to
Universal or mentioned by Plaintiffs' counsel.
25.
Since the deposition,Universal has attempted,on multiple occasions, to receive
Plaintiffs' purportedplumbing video(s),to no avail.
26.
On November 10, 2021, after Plaintiffs' depositions,Universal immediately sent
correspondence to Plaintiffs' counsel requestingthe videos. See attached Exhibit E - Request
Correspondence.
27.
Universal sent additional correspondenceto Plaintiffs' counsel on November 18,
2021, and December 1, 2021, requestingthe videos. See attached Exhibit F - Additional Request
Correspondence.
III.
MEMORANDUM OF LAW
A. Involuntary Dismissal Standard
"Any party may move for dismissal of an action or of any claim againstthat party for
failure of an adverse party to comply with these rules or any order of court." Fla. R. Civ. P. 1.420.
"A deliberate and contumacious disregardof the court's authoritywill justifyapplicationof this
severest of sanctions,as will bad faith,willful disregardor gross indifference to an order of the
court, or conduct which evinces deliberate callousness." Mercer v. Raine, 443 So. 2d 944,946
(Fla.1983) (internal
citations omitted)(emphasis added).
Where involuntarydismissal is requested,the Court must apply the factors handed down
in Kozel v. Ostendod 629 So.2d 817,818 (Fla.1993).See H & R Block Bank v. Perry, 205 So. 3d
776, 780 (Fla.2d DCA 2016) (applyingKozel factors to motion under rule 1.420).
Those factors are whether:
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CASE NO.: CACE-19-021656
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1. the attorney's
disobedience was willful,deliberate,or contumacious, rather than an
act of neglector inexperience;
2. the attorney has been previouslysanctioned;
3. the client was personallyinvolved in the act of disobedience;
4. the delayprejudicedthe opposingparty throughundue expense, loss of evidence, or
in some other fashion;
5. the attorney offered reasonable justification
for noncompliance; and
6. the delay created significant
problems ofjudicialadministration.
Bank ofNew York Mellonfor Certificate
Holders ofCWABS Inc.,Asset-Backed Certificates,
Series 2007-5 v. Diaz, 232 So. 3d 435, 439 (Fla.4th DCA 2017).
B. This Court Should Strike Plaintiffs' Pleadings
Since Plaintiffs' Claim was originallylodged with Universal, it appears that Plaintiffs and
their attorney have been engaged in a continuous campaign designed to thwart Universal's
investigationof the Claim and defense of the ensuing litigation.
Plaintiffs allegethat a loss
occurred on April5, 2019 that they did not notifyUniversal of until two months later on June 3,
2019. During Universal's investigationof the belated Claim, Plaintiffs-throughtheir attorney-
sent Universal a plumbing video dated October 18, 2018 that the attorney indicated was relevant
to the Claim. Plaintiffs' attorney now denies any knowledge ofthe 2018 Video. M. Ordonez Depo.
at 60:24-61:2. Plaintiffs did not provide any video in response to Universal's requests for
producdon. See attached Exhibit C - Plaintiffs'
Responses to Universal's RFP's at #3, #8. Further,
and more importantly,Plaintiffs swore to their interrogatoryresponses in which they stated that
the only persons who had any relevant video was Jogly Garcia and Javier Delgado. No mention
was made of any plumbing company having any relevant video. See attached Exhibit D -
Plaintiffs'
Responses to Universal's Interrogatoriesat #4.
Plaintiffs now proffera different video-one allegedlytaken closer in time to the alleged
date of loss-that Universal had no priorknowledge of. M. Ordonez Depo. at 61:15-17. Plaintiffs
make no attempt to explainwhere the 2018 Video came from or why it was produced to Universal
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
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duringthe adjustmentprocess. Plaintiffs do not explaintheir discoveryresponses. Plaintiffs fail to
account for the other of the two videos that Plaintiff testified exist in his deposition.M. Ordonez
Depo. at 36:21-37:6; 39:5-13. Finally,Plaintiffs refuse to produce the video that counsel for
Plaintiffs played a snippetof at the deposition.See attached Exhibit E - Request Correspondence,
Exhibit F - Additional Request Correspondence.
The foregoingconstitutes sufficient basis on which involuntarydismissal of Plaintiffs'
action may be premised. In fact,applying the Kozel factors,as this Court musts, reveals that
dismissal is the proper remedy.
Those factors are whether:
1. the attorney'sdisobedience was willful,deliberate,or contumacious, rather than an
act of neglector inexperience;
2. the attorney has been previouslysanctioned;
3. the client was personallyinvolved in the act of disobedience;
4. the delayprejudicedthe opposingparty throughundue expense, loss of evidence,or
in some other fashion;
5. the attorney offered reasonable justification
for noncompliance; and
6. the delay created significant
problems ofjudicialadministration.
Bank ofNew York MellonforCertificate
Holders ofCWABS Inc.,Asset-Backed Certificates,
Series
2007-5 v. Diaz, 232 So. 3d 435,439 (Fla.4th DCA 2017).Applying those factors here reveals the
following:
1.
Throughout the course of this litigation,
Plaintiffs' counsel hid the existence of the two
plumbing videos that Plaintiff testified to the existence of. 11 Plaintiffs' counsel served
interrogatory
responses and responses to requests for productionthat did not indicate that
the videos existed. Plaintiffs' counsel refused to produce Plaintiffs for depositionwithout
being ordered to do so by this Court, likelyknowing that Plaintiffs would testifyto the
1
To the extent that Plaintiffs suppliedinformation during discoverythat indicated that a video
exists,Universal naturallyassumed the described video was the 2018 Video-the only one
produced to Universal by Plaintiffs' attorneys duringthe adjustmentperiod.
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existence of the videos. Plaintiffs' counsel did these thingsknowing that counsel for
Plaintiffs had submitted the 2018 Video during Universal's investigation
of the Claim.
When presentedwith the 2018 Video, Plaintiffs' counsel denied knowledge thereof.
Thereafter,Plaintiffs' counsel has refused to tender the one video that counsel for Plaintiffs
indicates is relevant. These events evidence a willful and deliberate course of action
designedto obfuscate the originand facts of the loss that-even under Plaintiffs' best set
of facts--was not reportedfor two months and then only after the two plumbing companies
had conducted permanent repairsto the Property.This factor weighs heavilyin Universal's
favor.
2.
Universal can find no evidence that Plaintiffs' counsel has been sanctioned. However, this
Court has been forced to (1) compel Plaintiffs' deposition;and (2) compel Plaintiffs to
permit Universal to inspectthe Property.It is evidence that Plaintiffs' counsel has done
their best to thwart Universal's discoveryof the facts of this case.
3.
Plaintiffs were personalinvolved in the failure to providerelevant video to Universal. At
his deposition,Plaintiff testified that "there were videos I think we, we gave it to our
attorneys, but for sure I could recall it - - yeah - - there two, two videos there. Both, both
plumbers used videos to inspectthe system." M. Ordonez Depo. at 36:25-37:3. Despite
both plumbers having taken video and Plaintiffs' having given the video to their attorneys,
Plaintiffs swore to their interrogatory
responses in which they stated that the only persons
who had any relevant video was JoglyGarcia and Javier Delgado. See attached Exhibit D
- PlaintiHS'Resmses to Universal's Intemgatories at #4. Maintiffs didnot mention
either plumber or their attorneys as persons who possessedrelevant video. Plaintiffs were
intimatelyinvolved in the failure to disclose the evidence.
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4.
The delayin disclosingthe video(s)has prejudicedUniversal. First,Universal relied on the
2018 video when it denied Plaintiffs' Claim. The productionof the purportedlyirrelevant
video essentially
caused Universal's allegedbreach. Further,given the existence of the
2018 Video, Universal could all but rest its case on Plaintiffs' failure to promptly notify
Universal of the Claim-a complete defense to this action. One month before trial,
however, Plaintiffs' counsel firstindicated to Universal that the video counsel had supplied
to Universal may not be relevant at all. This gravelyaffects Universal's defense-including
having impacted Universal's decisions regardingexpert witnesses. Further,to the extent
that other videos exist,Plaintiffs' failure to disclose the videos2 has prevented Universal
from having the videos analyzed and from garneringtestimony from those individuals who
took the video regardingthe contents thereof. Universal did not learn of the existence of
the videos until after discoveryhad closed. No efforts on Universal's part can cure its
substantial prejudice.Universal's prejudicecannot be overstated.
5.
Whether Plaintiffs' counsel can offer reasonable justification
for (1)submittingthe 2018
Video in the first place;(2)not disclosingthe other videos in discovery;and (3)continuing
to keep the videos from Universal even after their existence has come to light:remains to
be seen. Universal cannot imagine any possiblereasonable justification
for this course of
conduct.
6.
This factor seems most applicablewhere a party has defied orders ofthe court. Such is not
the case here. However, significant
problems ofjudicialadministration may ensue should
this Court decide not to dismiss this action due to Plaintiffs' and their counsel's behavior.
2 As of this filing,Plaintiffs have yet to produce either video taken by either plumbing company.
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Universal will present the efforts that would be necessary to cure Universal's prejudice
below.
In sum, analysisofthe Kozel factors reveals that each one-except perhapsthe fact that Plaintiffs'
counsel has not been sanctioned-fall in favor of dismissal of this action. Dismissal is the proper
course.
In their Interrogatoryresponses, Plaintiffs lied about the existence of the two videos.
"When a party lies about matters bearing directlyon the issue of damages, dismissal is an
appropriatesanction." Distetano v. State Farm Mut. Auto. Ins. Co., %46 So. ld 571, 574 (Fla.4th
DCA 2003).There are no damages ifthe 2018 Video is relevant-and non-disclosure ofthe other
two videos can only be seen as an attempt to lull Universal into basing its defense on the existence
ofthe 2018 video.
There was a hole in the cast iron pipes in the 2018 Video. See Facts at 711, supra. The
existence of the hole told Universal that eight(8)months before Plaintiffs' Claim, water was
seepinginto the Property-and Plaintiffs knew about it. Yet Plaintiffs claimed that all the water
damage to the Property was caused by the allegedApril 2019 loss. This implicatesthe constant
and repeatedseepage clause in the Policy:
SECTION -
I
PERILS INSURED AGAINST
A.
Coverage A - Dwelling And Coverage B -
Other Structures
1.
We insure against direct physical loss to
property described in Coverages A and B.
However, loss does not include and we will
not pay for any "diminution in value".
2.
We do not insure, however, for loss:
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(5) Constant or
repeated seepage or
Ieakage of water or steam or the
presence
or
condensation
of
humidity, moisture or vapor, over a
period of weeks, months or years,
unless such seepage or Ieakage of
water or steam or the presence or
condensation of humidity, moisture or
vapor, and the resulting damage is
unknown to all "insureds" and is
hidden within the walls or ceilings or
beneath the floors or above the
ceilingsof a structure;
Exhibit G - Insurance Policy at pages 14-15 of UPCIC HO3 15 05 18. BasieaWy, damage to the
Property from constant or repeatedseepage may have been covered if (1)it was hidden under the
slab as may be relevant here; and (2) it was unknown to all insureds. Id. The 2018 Video
demonstrates-or may demonstrate if it was properlydisclosed-that the insureds knew about the
hole in the pipe and the seepage under the slab long before they (1)notified Universal of the same
or (2)made any attempt to cure the problem.
Then, one month before trial,Plaintiffs reveal the existence of two other videos and
indicate that they have no knowledge of the 2018 Video. The veracityof their statements
potentially
puts damages back on the table. Universal,however, cannot discover the veracityof
the statements because Plaintiffs waited until discoveryhad closed to reveal the other two videos.
This obfuscation-which bears upon damages-warrants dismissal of Plaintiffs' lawsuit.
C. Standard Where Dismissal Is Unnecessary To Cure Prejudice
"After considering[the Kozel] factors,if there is a less-severe sanction available than
dismissal with prejudice,the court should use it." Chappelle v. S. Fla. Guardianship Program,
Inc., 169 So. 3d 291, 294 (Fla.4th DCA 2015). It is imperativethat the lesser sanction imposed
cure the prejudiceworked on the opposing party. See Binger v. King Pest Control, 401 So. 2d
1310,1314 (Fla.1981):
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
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Prejudicein this sense refers to the surprisein fact of the objectingparty, and it is not
dependent on the adverse nature of the testimony.Other factors which may enter into
the trial court's exercise of discretion are: (i)the objectingparty'sabilityto cure the
prejudiceor, similarly,
his independentknowledge ofthe existence ofthe witness;(ii)
the callingparty'spossibleintentional,or bad faith,noncompliance with the pretrial
order;and (iii)
the possibledisruptionof the orderlyand efficient trial of the case (or
other cases).
While Binger dealt specifically
with the surpriseassociated with late disclosure of a witness,the
factors espousedthere apply equallyto late disclosure of evidence. Reive v. Deutsche Bank Nat.
Tr. Co., 190 So. 3d 93, 94 (Fla.4th DCA 2015).
We conclude that the court's denial of the continuance togetherwith the admission of
witnesses and documents not timelydisclosed to the defendant constituted "surprisein
fact" in this case and violated Binger v. King Pest Control, 401 So.2d 1310, 1313-14
(Fla.1981).The failure to give adequatenotice of evidence and witnesses constitutes a
due process violation. S.Z v. Dep't ofChildren & Family Servs., %73 So.2d 1277,1277
(Fla.3d DCA 2004) (deliveryof discoverypacket the Friday before a Monday trial
constituted "trial by ambush" and violated the defendant's due process rights).
As the
trial court abused its discretion in denyingthe motion to continue the trial,
and then in
permittingthe introduction of extremely late-listed witnesses and documents to the
prejudiceof the defendant, we reverse and remand for a new trial.
See also, Thompson v. Wal-Mart Stores, Inc., 60 So. 3d 440 (Fla. 3d DCA 2011)-,Claussen v.
State, Dept. of Transp.,750 So. 2d 79 (Fla.2d DCA 1999)-,Tomlinson-Mckenzie v. Prince, 718
So. 2d 394 (Fla.4th DCA 1998);Smith v. Univ. Med. Ctr., Inc.,559 So. 2d 393 (Fla.1st DCA
1990).
D. In The Alternative, This Court Should Enter An Order That Would Cure The
Tremendous Prejudice Inllicted Upon Universal By Plaintiffs' Repeated
Failures To Disclose Relevant Evidence
Dismissal is the appropriateremedy given Plaintiffs' and their counsel's conduct.
However, Universal understands that dismissal is a drastic remedy that this Court may be hesitant
to impose. Should that be the case, significantmeasures would have to be taken to cure the
prejudiceworked upon Universal by Plaintiffs' behavior.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
Page 19 of 23
Plaintiffs' submission ofthe 2018 Video, their failure to disclose the existence ofthe other
videos priorto November 10, 2021, and their subsequent failure to provide Universal a copy of
the videos, has severelyprejudicedUniversal by:
1.
Contaminating Universal's claims investigation
process and causing Universal to deny the
Claim based on faultyinformation;
2.
LullingUniversal into relyingon "evidence" that the damaged drainagepreceded the
claimed date of loss by several months;
3.
HinderingUniversal's ability
to settle this litigation;
and
4.
PermittingUniversal to relyon faultyinformation as it makes litigation
decisions-most
pointedlythe decision to hire experts and engage in other discoveryefforts.
Based on the substantial prejudicethat Plaintiffs' tactics have worked on Universal, the only to
begin to cure such prejudiceis to:
1.
Compel Plaintiffs to provideUniversal with a copy of all videos in their possessionthat
have anythingto do with the Claim, the plumbing system at the Property,or damages;
2.
Continuing this matter to afford Universal the opportunityto obtain a causation expert who
can analyzethe videos and other evidence and render an opinion;
3.
Re-opening discoveryto afford Universal the opportunityto discover facts and information
that this newly revealed evidence bears upon;
4.
PermittingUniversal to present evidence of the disclosure ofthe October 18, 2018 Video
to the jury as evidence that Universal did not breach the insurance agreement; and
5.
Limiting Plaintiffs' entitlement to attorney'sfees based on the additional efforts Plaintiffs'
and Plaintiffs' counsel obfuscation has caused and will continue to cause should this Court
not dismiss this matter.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
Page 20 of 23
Concerning Universal's alternative request, it is axiomatic that the Florida appellatecourts
abhor "trial by ambush." See, e.g., In re Estate of Lochhead, 443 So. 2d 283,284 (Fla.4th DCA
1983) ("One laudable purpose of disclosure is to eliminate surpriseand trial by ambush. That
purpose could have been achieved in this case by permittingappelleesto depose the witness or
simply by grantinga continuance.").
Avoidance of prejudiceshould always be the trial court's
guidinglightin the face ofrequestssuch as this. See Binger v. KingPest Control,401 So. 2d 1310
(Fla.1981).As the Florida Supreme Court quoted approvingly in Binger, "[al search for truth and
justicecan be accomplished only when all relevant facts are before the judicialtribunal. Those
relevant facts should be the determiningfactor rather than gamesmanship, surprise,or superior
trial tactics." Id. (citation
omitted).
Here, the late discoveryof (1) the potentialirrelevance of the 2018 Video; and (2) the
existence of other potentially
relevant videos; have substantially
prejudicedUniversal. Universal
cannot possiblybe preparedto defend this matter at trial as currentlyscheduled without retooling
their entire defense around video evidence newly disclosed,but not yet produced.The retooling
for a future trial date will requireadditional fact discovery and expert discovery and disclosure.
Finally,Plaintiffs and Plaintiffs' counsel cannot reap financial benefits from their contumacious
behavior. Attorney'sfees-should they be awarded at all-should be limited to account for the
additional that will be requiredby both Plaintiffs' counsel (forwhich they should not be paid)and
by Universal's counsel (forwhich Universal should not have to incur the cost).
IV.
CONCLUSION
Based on the foregoing,Universal requests that Plaintiffs entire action be dismissed with
prejudice.
Universal's prejudicein this matter cannot be cured. Since June of 2019-prior to this
action being
has been expending resources investigatingthe Claim and
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
Page 21 of 23
defending this action based on allegedlyfalse information that Plaintiffs' counsel provided.
Universal is now faced with the prospect of having to defend againstevidence that was never
disclosed duringdiscoveryand stillhas not been produced to Universal-all while reelingfrom
its evidence of a priorexistinghole in Plaintiffs' plumbing system being potentiallyirrelevant.
Dismissal is the proper course of action here. No other measures can cure Universal's prejudice.
Still,
however, Universal is obligedto givethis Court something that would get as close to
curingits prejudiceas possible.To that end, Universal has come up with the following:
1.
Compel Plaintiffs to provideUniversal with a copy of all videos in their possessionthat
have anythingto do with the Claim, the plumbing system at the Property,or damages;
2.
Continue this matter to afford Universal the opportunityto obtain a causation expert who
can analyzethe videos and other evidence and render an opinion;
3.
Re-open discoveryto afford Universal the opportunityto discover facts and information
that this newly revealed evidence bears upon;
4.
Permit Universal to present evidence of the disclosure of the October 18, 2018 Video to
the jury as evidence that Universal did not breach the insurance agreement; and
5.
LimitingPlaintiffs' entitlement to attorney'sfees based on the additional efforts Plaintiffs'
and Plaintiffs' counsel obfuscation has caused and will continue to cause should this Court
not dismiss this matter.
WHEREFORE,
Defendant,
UNIVERSAL
PROPERTY
AND
CASUALTY
INSURANCE COMPANY, respectfullyrequests this Court to enter an order grantingthe
Defendant's Motion to Dismiss Plaintiffs' Claim With Prejudice.As a distant and far less than
perfectalternative to the appropriate
relief of dismissal,Universal prays that this Honorable Court
enter an Order.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
Page 22 of 23
1.
Compelling Plaintiffs to provideUniversal with a copy of all videos in their possessionthat
have anythingto do with the Claim, the plumbing system at the Property, or damages;
2.
Continuingthis matter;
3.
Re-open fact and expert discovery;
4.
Permit Universal to present evidence of the disclosure of the October 18, 2018 Video to
the jury;and
5.
Limiting Plaintiffs' possibleentitlement to attorney'sfees.
Mitchelle Ordonez and Doreen Ordonez vs. UPCIC
CASE NO.: CACE-19-021656
Page 23 of 23
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoingwas furnished via E-
Service and/or E-Portal to: Dalyz Limia, Esq.; Gisel Brito Silverberg,Esq., SILVERBERG I
BRITO, PLLC and Benjamin R. Alvarez, Esq., ALVAREZ, FELTMAN, DA SILVA &
COSTA, P.L. (eservice@silverbergbrito.com;
teamdelta@silverbergbrito.com:
ben@afdc.legal:
Counsel for Plaintiffs,
on the 12th day of January, 2022.
M
Attorney
Defendant
Universal Property & Casualty Company
P.O. Box 9388
Fort Lauderdale, Florida 33309
Telephone: (954) 958-3319
Toll-Free: 1-833-658-8594 6Judges Only)
Facsimile: (954) 958-1262
By: /s/ Simone Boston
Simone Boston, Esq.
Florida Bar No. 58864
For Service of Court Documents onlv:
Primary: upciceservice02(*universalproperty.com
Secondary: jsl130(*universalproperty.com
Tertiary:sb0922(*universalproperty.com
For Scheduling Matters:
jsl 130(*universalproperty.com
*Please do not send any inquiries or scheduling matters to upciceservice@universalpropertv.com or
upciceservice02@universalpropertv.com.
Exhibit 66A,,
SilverbergIBrito,
PLLC
Attorneys At Law
1200 NW 78'IJAve, Suite 302
F,mail: eservice@silvcrbergbrito.com
Miami, FI, 33126
Phone: (305) 735-3966
www,Kilverbergbrito.com
Fax: (305) 440-1055
July 18, 2019
Sent Via Entail & Facsimile
Alder Adj usting Corporation
Universal Property & Casualty Insurance Company
Attention: Eduardo Campos
claimshelp@universalproperty.com
Fax: (954) 958-1206
Re:
Insured(s):
MitcheHe R. Ordonez & Doreen B. Ordonez
Claim Number:
FL19-0117529
Policy Number:
1501-1804-4877
Date ofLoss: April 5, 2019
Property Address:
610 SW 69? Way, Pembroke Fines, FL 33023
Dear Mr. Campos:
As you are aware. our law firm has been retained by Mitchelle R. Ordonez & Doreen
B. Ordonez ("Clients")to represent them regardingthe loss (the "Loss") that occurred at the
above referenced property. We are in receiptofyour correspondence dated June 13,2019 and
July 9, 2019 wherein Universal is requestingvarious documents to further investigatethe
above-mentioned claim.
Pursuant to Universal's request. enclosed pleasefind the documentation requested:
1.
As you are aware, the inspectionof the above-mentioned property took place on June
17: 2019,
2.
A copy ofthe repairestimate preparedby SpecialtyPublic Adjusters,Inc.
3.
A copy ofthe invoice from R&I Plumbing Service,Corp.;
4,
A check from the Insureds to R&I Plumbing Service, Corp. for partialpayment;
5,
A copy of the invoice from Monopoly Plumbing;
6.
76 photographs depictingsome ofthe damages to the above-mentioned property;
7.
Please provide three (3) dates and times to conduct the recorded statement.
At this time, the insureds have provided all documents in their possession pursuant to
Universal's requests. However, the insured reserves his rightsubmit additional documents
should theybecome available.
Should you have any questionsor concerns, pleasedo not hesitate to contact our office.
Sincerely,
/s/ Gisel Brim
Grisel Brim, Esq.
Enclosures as stated.
E??1?il?it
"B"
From:
Xanathy Gonzalez
Sent
Friday,July26, 2019 3:08 PM
To:
Eduardo Campos; Claims Help
CC
Gisel Brito, Esq.;Yasimi Martinez
Subject:
RE: Claim FL19-0117529/Insured: Mitchelle Ordonez and Doreen Ordonez
Attachments:
CLAIM NO.: FL19-0117529/ MITCHELLE R. ORDONEZ & DOREEN B. ORDONEZ
Importance:
High
Good Afternoon Mr. Campos,
The attachments were providedthrough a We-Transfer link,as mentioned in the originalemail sent previously
to Universal and attached to this email for your review. I have a created another link with all the attachments
mentioned in said correspondence.
Please be aware that the followinglink expireson August 2, 2019. Please download all attachments priorto the
links expiration.
Should you have any issues accessingany attachments,pleaselet us know immediately.
https://wetrans
fer.com/downloads/ecOf'7aae80a9776f436cf153cec2aeOf20190726175934/83d3045be2abe359a3
2cc9bb0654896620190726175934/307643
Thank you and should you have any questionsor concerns, pleasedo not hesitate to contact our office.
Sincerely,
Xanathy Gonzalez
SilverbergIBrito,
PLLC
P:
305-735-3966
F:
305-440-1055
A: 1200 NW 78th Avenue, Suite 302
Miami, Florida 33126
E: xanathy@silverbergbrito.com
Confidentiality Notice: This e-mail contains information intended only for the use of the individual or entity named above. If the reader of this e-
mail is not
the intended recipient or the employee or agent responsible for delivering it to the intended recipient, any dissemination, publication or copying of this e-
mail is strictlyprohibited. The sender does not accept any responsibility for any loss, disruption or damage to your data or computer system that may
occur while using data contained in,or transmitted with, this e-mail. If you have received this e-mail in error, please immediately notify us by return e-
mail. Thank you.
From: Eduardo Campos
Sent: Friday,July 26, 2019 12:18 PM
To: eservice
Subject: FW: Claim FL19-0117529/Insured: Mitchelle Ordonez and Doreen Ordonez
Good afternoon,
1
We have received your letter dated July 18, 2019 regarding the above insured; however, none of the attachments were
received; the items pending would be:
A copy of SpecialtyPublic Adjusters, Inc.
Invoice from R&1 Plumbing Service, Corp
R & I Plumbing Service Corp partialpayment
Invoice from Monopoly Plumbing
76 photographs.
Your client's recorded statement needs to be scheduled and the following dates/times are currentlyopen:
08/06
From 2:30 PM to 4:30 PM
08/07
From 10:00 Am to 4:00 PM
08/08
From 11:30 AM to 4:00 PM
Please advise
Thank you
Eduardo Campos
Claims Examiner
Alder Adjusting Corporation
(W): (954) 958-1200 ext:6442
-.universalproperty.com
ALDER
.I%1'?%-I-%'?I It>dtlll K
Join us and GO GREEN! Go paperless with Universal.
Confidentiality Notice: This e-mail message, including
any attachments, is for the sole use of the intended recipient(s)and may
contain confidential and privileged information. Any unauthorized review, use,
disclosure or distribution is prohibited. If you are not the intended recipient
and received this in error, please contact the sender by reply e-mail. You are
hereby notified that the copying, use or distribution of any information or
materials transmitted in or with this message is strictlyprohibited.
2
Subject:
CLAIM NO.: FL19-0117529/ MITCHELLE R. ORDONEZ & DOREEN B. ORDONEZ
From:
",
'Xanathy Gonzalez "
To:
., ,
'Claimshelp@universalproperty. com'-
Date:
2019-07-18 08:55:54
Good Afternoon Mr. Campos,
Attached please find the following correspondence in reference to the above-mentioned
claim for your review. Please be aware, we have included a link to the attachments
enclosed to said correspondence.
Please be advised the following link expires on July 25, 2019. Please download all
attachments prior to the links expiration.
https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwetransfer.com%2fdown1oads%2fb0b5b78e9
20b8f2b93be000d85203db620190718165200%2feffc3bf39b6fdd9f069b9f734ea4574520190718165200%2fd
04a41&c=E, l,byOBLjLkfPZ0nnm2LFHrmxNj 31LCScHfnUYUjjUE-
DXVMatYYqATldENpmj JhpQt0tjwguCvCj Fnjw0h81JywqXYDL6CcC9LKUiDufJd9qqC&typo=0
Thank you and should you have any questions or concerns, please do not hesitate to
contact our office.
Sincerely,
[cid:image001.jpg@01DZF711.814D09A0]
Xanathy Gonzalez
Silverberg IBrito, PLLC
P:
305-735-3966
F:
305-440-1055
A:
1200 NW 78th Avenue, Suite 302
Miami, Florida 33126
E:
xanathy@silverbergbrito.com
Confidentiality Notice: This e-mail contains information intended only for the use of the
individual or entity named above. If the reader of this e-mail is not the intended
recipient or the employee or agent responsible for delivering it to the intended
recipient, any dissemination, publication or copying of this e-mail is strictly
prohibited. The sender does not accept any responsibility for any loss, disruption or
damage to your data or computer system that may occur while using data contained in, or
transmitted with, this e-mail. If you have received this e-mail in error, please
immediately notify us by return e-mail. Thank you.
From:
Xanathy Gonzalez
Sent
Thursday, July 18, 2019 12:56 PM
To:
Claims Help
CC
Gisel Brito, Esq.
Subject:
CLAIM NO.: FL19-0117529/ MITCHELLE R. ORDONEZ & DOREEN B. ORDONEZ
Attachments:
7.18.19 Letter to IC.pdf
Importance:
High
Good Afternoon Mr. Campos,
Attached pleasefind the followingcorrespondencein reference to the above-mentioned claim for your review.
Please be aware, we have included a link to the attachments enclosed to said correspondence.
Please be advised the followinglink expireson Julv 25, 2019. Please download all attachments priorto the
links expiration.
https://wetransfer.com/downloads/bOb5b78e920b8f2b93be000d85203db620190718165200/effc3bf39b6fdd9f06
9b9f734ea4574520190718165200/d04a41
Thank you and should you have any questionsor concerns, pleasedo not hesitate to contact our office.
Sincerely,
Xanathy Gonzalez
SilverbergIBrito,
PLLC
P:
305-735-3966
F:
305-440-1055
A: 1200 NW 78th Avenue, Suite 302
Miami, Florida 33126
E: xanathy@silverbergbrito.com
Confidentiality Notice: This e-mail contains information intended only for the use of the individual or entity named above. If the reader of this e-
mail is not
the intended recipient or the employee or agent responsible for delivering it to the intended recipient,any dissemination, publication or copying of this e-
mail is strictlyprohibited. The sender does not accept any responsibility for any loss, disruption or damage to your data or computer system that may
occur while using data contained in, or transmitted with, this e-mail. If you have received this e-mail in error, please immediately notify us by return e-
mail. Thank you.
1
Exhibit 66C ,,
Filing# 104669813 E-Filed 03/10/2020 07:25:08 PM
MITCHELLE R ORDONEZ, an individual,
IN THE CIRCUIT COURT OF THE 17TH
and DOREEN B ORDONEZ, an individual,
JUDICIAL
CIRCUIT
IN
AND
FOR
BROWARD COUNTY, FLORIDA
Plaintiffs,
V
GENERAL JURISDICTION DIVISION
UNIVERSAL PROPERTY & CASUALTY
CASE NO.: CACE-19-021656
INSURANCE
COMPANY,
a
Florida
governmental entity,
Defendant.
i
PLAINTIFFS' RESPONSES TO DEFENDANT'S FIRST REQUEST TO PRODUCE
COME NOW, the Plaintiffs,MITCHELLE R ORDONEZ, and DOREEN B ORDONEZ
(collectively
the "Plaintiffs"),
hereby respond to the Defendant's, UNIVERSAL PROPERTY &
CASUALTY INSURANCE COMPANY (the"Defendant"),First Request to Produce to Plaintiffs,
and in support thereof states as follows:
GENERAL OBJECTIONS
1.
The Plaintiffs object to the document requests to the extent that they seek
information that is protectedfrom disclosure by the attorney-client
privilege,
the attorney work
productdoctrine,or any other privilegeor immunity from disclosure.
2.
The Plaintiffs objectto these document requests to the extent that they seek
information within the possessionof entities,partiesor persons other than the Plaintiff.
3
The Plaintiffs objectto these document requests to the extent that the Defendant
seeks to impose requirementsor obligationsinconsistent with the Florida Rules ofCivil Procedure.
4.
The Plaintiffs' failure to objectto a document request on a particularground shall
not be construed as a waiver of her rightto objecton that ground or any additional ground at a
later time.
PAGE 1 OF 7
SILVERBERGIBRITO, PLLC
1200 NW 78th Avenue, Suite 302, Miami, FL 33126 ? Tel (305) 735-3966 ? Fax (305) 440-1055
5.
The Plaintiffs objectto the document requests to the extent that theyare ambiguous,
vague, overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of
admissible evidence,and not limited to the allegationcontained in the Complaint.
6.
The Plaintiffs objectto each and every one ofthe document requests, to the extent
that (a)the discoverysought by any such request is unreasonably cumulative or duplicative,or is
obtainable from some other source that is more convenient, less burdensome, or less expensive,
and/or (b) compliance with any such request would be unduly burdensome, expensive,annoying
or oppressive.
7.
Inso far as the productionof any document by the Plaintiffs may be deemed to be a
waiver of any privilegeor right,such waiver shall be deemed to be a limited waiver with respect
to that particular
document only.Any inadvertent productionof any document shall not be deemed
or construed to constitute a waiver of any privilegeor rightof the Plaintiffs,whom reserve the
rightto demand that the Defendant returns any such document and all copiesthereof.
8
To the extent the Plaintiffs indicate below that documents will be produced or will
be produced subjectto an appropriateConfidentiality
Orde
Preview
Filing# 141888271 E-Filed 01/12/2022 05:58:26 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA MITCHELLE R. ORDONEZ and CASE NO.: CACE-19-021656 DOREEN B. ORDONEZ, Plaintiffs, VS. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. i DEFENDANT'S MOTION FOR INVOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Defendant, UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY (hereinafter "Universal"), who, by and throughthe undersignedcounsel and pursuant to Fla. R. Civ. P. 1.420, hereby files this Motion For InvoluntaryDismissal With Prejudiceofthis action,and as grounds therefore states as follows: I. INTRODUCTION On June 3, 2019, Plaintiffs notified Universal of an allegedloss that occurred on April 5, 2019. During Universal's investigationof the Claim, Plaintiffs, by and through their counsel, submitted a plumbing video in support of their Claim on or about July29, 2019. The video was date stamped October 18, 2018. Universal relied in part on this video when Universal denied Plaintiffs' Claim. Throughout the course of discoveryin this matter, Universal made numerous requests for any video in Plaintiffs' possession.Until Plaintiff, Mitchelle Ordonez's November 10, 2021 deposition--whichhad to be compelledby this Court-Universal was unaware ofthe existence of any other video. At the deposition,Plaintiffs' counsel denied knowledge of the October 18, 2018 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/12/2022 05:58:26 PM.**** Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 2 of 23 video and displayeda snippetof a video allegedlytaken by one of Plaintiffs' plumbers after the allegeddate of loss. To date,Plaintiffs have not disclosed the video. Plaintiffs' submission ofthe 2018 Video, their failure to disclose the existence ofthe other videos priorto November 10, 2021, and their subsequent failure to provide Universal a copy of the videos,has severelyprejudicedUniversal by: 1. ContaminatingUniversal's claims investigation process and causingUniversal to deny the Claim based on faultyinformation; 2. Lulling Universal into relyingon "evidence" that the damaged drainage preceded the claimed date of loss by several months; 3. Hindering Universal's abilityto settle this litigation; and 4. PermittingUniversal to relyon faultyinformation as it makes litigation decisions-most pointedlythe decision to hire experts and engage in other discoveryefforts. Based on the substantial prejudicethat Plaintiffs' failure to disclose known and relevant evidence to Universal despiterepeatedrequests for the same, Universal now moves to strike Plaintiffs' pleadingsor, in the alternative, for relief that includes: 1. Compelling Plaintiffs to provideUniversal with a copy ofthe videos; 2. Continuingthis matter to afford Universal the opportunityto obtain a causation expert who can analyzethe video and other evidence and render an opinion; 3. Re-opening discoveryto afford Universal the opportunityto discover facts and information that this newly revealed evidence bears upon; 4. PermittingUniversal to present evidence of the disclosure of the October 18, 2018 video to the jury as evidence that Universal did not breach the insurance agreement; and Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 3 of 23 5. LimitingPlaintiffs' entitlement to attorney's fees based on the additional efforts Plaintiffs' and Plaintiffs' counsel obfuscation has caused and will continue to cause should this Court not dismiss this matter. II. FACTUAL BACKGROUND 1. This is a first-party property action filed by Plaintiffs againstUniversal,alleging property damage due to an allegedplumbing overflow that reportedlyoccurred on or about April 5,2019. 2. This matter is currentlyset for trial beginningDecember 13, 2021. 3. Universal first learned of the allegedloss on June 3, 2019, when Plaintiffs,by and through their counsel, initiated the underlyingclaim (the"Claim"). 4. On July 18, 2019, Plaintiffs' counsel sent documents responsiveto Universal's requests duringthe adjustmentof the Claim. 5. Attached to Plaintiffs' electronic correspondencewas a cover letter, also dated July 18, 2019, which listed the documents contained within the link: "A copy ofthe repairestimate preparedby SpecialtyPublic Adjusters,Inc.;A copy of the invoice from R&I Plumbing Service,Corp.; A check from the Insureds to R&I Plumbing Service,Corp. for partialpayment; A copy of the invoice from Monopoly Plumbing; 76 photographs depictingsome ofthe damages to the above- mentioned .. property; See attached Exhibit A - Plaintiffs' Cover Letter. 6. However, the documents were contained in a time-sensitive link that expiredafter seven days. 7. Universal's adjuster,Eduardo Campos, responded to Plaintiffs' correspondence and noted that the link expiredbefore he was able to view and/or download any documents. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 4 of 23 8 On July26, 2019, Plaintiffs' counsel sent another time-sensitive link from which Mr. Campos downloaded all items included. See attached Exhibit B - Plaintiffs' Document Production Correspondence. 9- The July26, 2019 link included a plumbing video (the"2018 Video"). 10. The 2018 Video, the content of which is consistent with the facts of this case, is date stamped October 1%,101%. See Affidavit ofEduardo Campos to befiledunder separate cover. 11. The 2018 Video at 6 min. 39 seconds revealed a hole in the cast iron pipe at 43' 5": 01:52:12 PM / 10-19-2018 .- Camera is in a water- filled hole before plumbing line is flushed to reveal contours of hole. Tt.?. . 0:06:06 0:06:42 4@ Ga 10 30 Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 5 of 23 01:52:17PM / 1?-19-2?18 ? - During flush, hole is I,r revealed. Pointer is 2018-10-19-13-46-05 directed at bottom lip of cast iron pipe. 0:06:11 0:06:37 +9 @@ 2 10 30 1/' ... 12. Universal relied,in part, on the video-including the existence of a hole in the cast iron pipe as of October, 2018-when it denied the Claim. See 4#idavit ofEduardo Campos. 13. After Universal denied Plaintiffs' Claim, this action ensued. 14. On January 3, 2020, Universal served Plaintiffs with requests to produce that included requests for all videos in Plaintiffs' possession.Plaintiffs did not provide any videos with the documents produced in response to Universal's requests and answered the specificvideo requests as follows: 3. Copies of any and all photographs or videotape taken of Plaintiff(s) home with regard to any inspectionor testingperjormed by an expert or representativeofthe Plaintijf(s) afterthe date of loss as referenced in the Complaint. Please provide any and all photographs in their native digitalform. ANSWER: Objection.This request, as phrased, is vague, and ambiguous. Notwithstanding the foregoing objection,at this time, the documents responsiveto this request currentlyin possessionof the Plaintiff are attached. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 6 of 23 8. Copies ofany and all photographs, recordings or videotape showing the damage which is being claimed in the Complaint and pursuant to the Policy. ANSWER: Objection.This request, as phrased, is vague, and ambiguous. Notwithstanding the foregoing objection,at this time, the documents responsive to this request currentlyin possession of the Plaintiff are attached. See attached Exhibit C - Plaintiffs' Responses to Universal's RFP's. 15. On March 10, 2020, Plaintiffs submitted verified responses to Universal's interrogatories. Universal copied the substance of the Supreme Court approved initial interrogatories and requestedthat Plaintiffs identifyeach person who had possession,custody,or control of any video pertainingto the Claim. Plaintiffs did not identifyany plumber or their attorney as having any videos and referred Universal to the production documents that did not contain any videos: 4. Please state the name and address of every person known to you. your agents or your attorneys, who have knowledge abotit or possession, custody or control ofany model, plat. map, drawing, motion picmre, videotape, or photograph pertaining to any fact or issue involved in this controversy, please describe as each what items such individualfs) have, the name andaddress ofthe party who tookor prepared it and the date it was taken orprepared- ANSWER: Objection. This request, as phrased. is vague. ambiguous. Notwithstanding the foregoing objection, Jogly Garcia Specialty Public Adjusters 6625 Miami Lakes Drive, Suite 5 I 2, Miami Lakes, Florida 33014 Javier Delgado Hydro Restoration, LLC 15358 SW 51" Manor Davie, Florida 33331 Please refer to the documents produced in Plaintiffs' response to Defendant's Request for Production. See attached Exhibit D - Plaintiffs' Responses to Universal's Interrogatories. 16. On September 20, 2021, Plaintiffs filed their Amended Witness and Exhibit List and listed as an exhibit to be used at trial: "Any and all photographs and/or videos regardingthis Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 7 of 23 case." No specificvideo was listed on the list and Universal remains unaware of what video(s) Plaintiffs' intent to relyon at trial. 17. Thereafter Universal made several attempts to depose Plaintiffs. 18. Discovery in this matter closed on October 30,2021. 19. Universal was forced to move to compel Plaintiffs' depositionsand, on November 3, 2021, this Court entered an Order compellingthe depositions by November 12,2021. 20. Following the delay,Universal finallydeposed Plaintiff,Mitchelle Ordonez, on November 10,2021. 21. At the deposition,Plaintiff testified that the two plumbing companies who performed work on the covered property after the allegedloss each conducted video inspections ofthe plumbing lines: 21 Q. So I'm going to share my screen with you. 22 At any time did either plumber do a video inspection 23 of your plumbing lines? 24 A. I believe so. I cannot remember. So if 25 I -- if there was -- there were videos I think we, we 1 gave it to our attorneys, but for sure I could recall 2 it yeah there two, two videos there. Both, 3 both plumbers used videos to inspect the system. 4 Q. Were you there both times when they were 5 actually performing the services? 6 A. Yes. M. Ordonez Depo. at 36:21-37:6. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 8 of 23 5 Q. So going back to the plumbing work that 6 was done. I think have answered this, so I apologize 7 if I'm asking you again. You did or did not see when 8 they did a video inspection of the pipes? 9 A. I don't know what they're doing up there, 10 but they said that they -- that they, they will do 11 the video. So that's the first one. The second one, 12 I don't know what he did too, but he said he's going 13 to do the video. M. Ordonez Depo at 39:5-13. 22. During the deposition,Universals' counsel played a portionof the 2018 Video. Thereafter,there was discussion over the contents of the video during which Plaintiffs' counsel disclaimed knowledge of the 2018 Video, though the video had been given to Universal by Plaintiffs' counsel. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 9 of 23 4 MS. LIMIA: Were you able to get the 5 video? 6 MS. BOSTON: I do have the video, but 7 when I'm clicking on share now, it's not showing. I 8 can see it. So I m just trying to figure. Maybe I 9 need to close out some windows. Hold on. There you 10 go. Can you guys see the video? 11 MS. LIMIA: YeS. 12 BY MS. BOSTON: 13 Q. So Mr. Ordonez? 14 A. Yes. 15 Q. My million-dollar question is the video 16 that was provided from the plumber as you can see 17 here at the top, depicts the inside of your pipe at 18 the time of inspection and how long it takes them to 19 inspect it. The date of the video is August 19th, 20 2018. It's several months prior to the April, 2019 21 loss date. Can you explain that? 22 A. No, I, I need to see the video. I need 23 to see that. M. Ordonez Depo. at 59:4-23. 20 Q. At any time as the date stamped on this 21 video, October 19th, 2018, did they perform plumbing 22 work at your home? 23 A. No. Not that date that I know of. 24 MS. LIMIA: Now, and Counsel, I ve never 25 seen this video before. That's why I was asking Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 10 of 23 1 because this is not the video that I have on file for 2 this one. 3 MS. BOSTON: This is the video that was - 4 I'm pulling it from my claim file. Do you want to 5 go off record on it we can talk about it? I'll also 6 refer to any videos that I'll open from your link, as 7 well. Could you guys just reset the link, so I'll 8 refer to that. 9 THE REPORTER: Yeah, I believe Ms. Limia 10 is frozen. 11 MS. BOSTON: Oh, technical issues. 12 MS. LIMIA: Sorry, it kicked me out. Can 13 you guys hear me? 14 THE REPORTER: Yeah, we can hear you now. 15 MS. BOSTON: It's one of those days. 16 Yeah. So I've never seen that video before. Before 17 right now. 18 MS. BOSTON: As previously stated, that's 19 the video was provided during the adjustment of the 20 claim by the plumber. That's fine. I'm just going 21 to open up everything so we can go over everything. 22 The problem that I'm having is -- we can go off for a 23 minute. M. Ordonez Depo. at 60:20-61:23. 23. During the discussion, Plaintiffs' counsel also played a portionof a video. (M. Ordonez Depo. at 61:15-17).It is believed that the plumbing video was created by R&I Plumbing Service,Corp. However, Universal lacks sufficient evidence to ascertain the validityof such video as it has never been produced to Universal during the adjustmentof Plaintiffs' claim, nor has it been produced in discovery. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 11 of 23 24. Prior to the deposition,neither the plumbing video displayedat the depositionnor the other plumbing video that Plaintiff acknowledged the existence of had ever been disclosed to Universal or mentioned by Plaintiffs' counsel. 25. Since the deposition,Universal has attempted,on multiple occasions, to receive Plaintiffs' purportedplumbing video(s),to no avail. 26. On November 10, 2021, after Plaintiffs' depositions,Universal immediately sent correspondence to Plaintiffs' counsel requestingthe videos. See attached Exhibit E - Request Correspondence. 27. Universal sent additional correspondenceto Plaintiffs' counsel on November 18, 2021, and December 1, 2021, requestingthe videos. See attached Exhibit F - Additional Request Correspondence. III. MEMORANDUM OF LAW A. Involuntary Dismissal Standard "Any party may move for dismissal of an action or of any claim againstthat party for failure of an adverse party to comply with these rules or any order of court." Fla. R. Civ. P. 1.420. "A deliberate and contumacious disregardof the court's authoritywill justifyapplicationof this severest of sanctions,as will bad faith,willful disregardor gross indifference to an order of the court, or conduct which evinces deliberate callousness." Mercer v. Raine, 443 So. 2d 944,946 (Fla.1983) (internal citations omitted)(emphasis added). Where involuntarydismissal is requested,the Court must apply the factors handed down in Kozel v. Ostendod 629 So.2d 817,818 (Fla.1993).See H & R Block Bank v. Perry, 205 So. 3d 776, 780 (Fla.2d DCA 2016) (applyingKozel factors to motion under rule 1.420). Those factors are whether: Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 12 of 23 1. the attorney's disobedience was willful,deliberate,or contumacious, rather than an act of neglector inexperience; 2. the attorney has been previouslysanctioned; 3. the client was personallyinvolved in the act of disobedience; 4. the delayprejudicedthe opposingparty throughundue expense, loss of evidence, or in some other fashion; 5. the attorney offered reasonable justification for noncompliance; and 6. the delay created significant problems ofjudicialadministration. Bank ofNew York Mellonfor Certificate Holders ofCWABS Inc.,Asset-Backed Certificates, Series 2007-5 v. Diaz, 232 So. 3d 435, 439 (Fla.4th DCA 2017). B. This Court Should Strike Plaintiffs' Pleadings Since Plaintiffs' Claim was originallylodged with Universal, it appears that Plaintiffs and their attorney have been engaged in a continuous campaign designed to thwart Universal's investigationof the Claim and defense of the ensuing litigation. Plaintiffs allegethat a loss occurred on April5, 2019 that they did not notifyUniversal of until two months later on June 3, 2019. During Universal's investigationof the belated Claim, Plaintiffs-throughtheir attorney- sent Universal a plumbing video dated October 18, 2018 that the attorney indicated was relevant to the Claim. Plaintiffs' attorney now denies any knowledge ofthe 2018 Video. M. Ordonez Depo. at 60:24-61:2. Plaintiffs did not provide any video in response to Universal's requests for producdon. See attached Exhibit C - Plaintiffs' Responses to Universal's RFP's at #3, #8. Further, and more importantly,Plaintiffs swore to their interrogatoryresponses in which they stated that the only persons who had any relevant video was Jogly Garcia and Javier Delgado. No mention was made of any plumbing company having any relevant video. See attached Exhibit D - Plaintiffs' Responses to Universal's Interrogatoriesat #4. Plaintiffs now proffera different video-one allegedlytaken closer in time to the alleged date of loss-that Universal had no priorknowledge of. M. Ordonez Depo. at 61:15-17. Plaintiffs make no attempt to explainwhere the 2018 Video came from or why it was produced to Universal Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 13 of 23 duringthe adjustmentprocess. Plaintiffs do not explaintheir discoveryresponses. Plaintiffs fail to account for the other of the two videos that Plaintiff testified exist in his deposition.M. Ordonez Depo. at 36:21-37:6; 39:5-13. Finally,Plaintiffs refuse to produce the video that counsel for Plaintiffs played a snippetof at the deposition.See attached Exhibit E - Request Correspondence, Exhibit F - Additional Request Correspondence. The foregoingconstitutes sufficient basis on which involuntarydismissal of Plaintiffs' action may be premised. In fact,applying the Kozel factors,as this Court musts, reveals that dismissal is the proper remedy. Those factors are whether: 1. the attorney'sdisobedience was willful,deliberate,or contumacious, rather than an act of neglector inexperience; 2. the attorney has been previouslysanctioned; 3. the client was personallyinvolved in the act of disobedience; 4. the delayprejudicedthe opposingparty throughundue expense, loss of evidence,or in some other fashion; 5. the attorney offered reasonable justification for noncompliance; and 6. the delay created significant problems ofjudicialadministration. Bank ofNew York MellonforCertificate Holders ofCWABS Inc.,Asset-Backed Certificates, Series 2007-5 v. Diaz, 232 So. 3d 435,439 (Fla.4th DCA 2017).Applying those factors here reveals the following: 1. Throughout the course of this litigation, Plaintiffs' counsel hid the existence of the two plumbing videos that Plaintiff testified to the existence of. 11 Plaintiffs' counsel served interrogatory responses and responses to requests for productionthat did not indicate that the videos existed. Plaintiffs' counsel refused to produce Plaintiffs for depositionwithout being ordered to do so by this Court, likelyknowing that Plaintiffs would testifyto the 1 To the extent that Plaintiffs suppliedinformation during discoverythat indicated that a video exists,Universal naturallyassumed the described video was the 2018 Video-the only one produced to Universal by Plaintiffs' attorneys duringthe adjustmentperiod. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 14 of 23 existence of the videos. Plaintiffs' counsel did these thingsknowing that counsel for Plaintiffs had submitted the 2018 Video during Universal's investigation of the Claim. When presentedwith the 2018 Video, Plaintiffs' counsel denied knowledge thereof. Thereafter,Plaintiffs' counsel has refused to tender the one video that counsel for Plaintiffs indicates is relevant. These events evidence a willful and deliberate course of action designedto obfuscate the originand facts of the loss that-even under Plaintiffs' best set of facts--was not reportedfor two months and then only after the two plumbing companies had conducted permanent repairsto the Property.This factor weighs heavilyin Universal's favor. 2. Universal can find no evidence that Plaintiffs' counsel has been sanctioned. However, this Court has been forced to (1) compel Plaintiffs' deposition;and (2) compel Plaintiffs to permit Universal to inspectthe Property.It is evidence that Plaintiffs' counsel has done their best to thwart Universal's discoveryof the facts of this case. 3. Plaintiffs were personalinvolved in the failure to providerelevant video to Universal. At his deposition,Plaintiff testified that "there were videos I think we, we gave it to our attorneys, but for sure I could recall it - - yeah - - there two, two videos there. Both, both plumbers used videos to inspectthe system." M. Ordonez Depo. at 36:25-37:3. Despite both plumbers having taken video and Plaintiffs' having given the video to their attorneys, Plaintiffs swore to their interrogatory responses in which they stated that the only persons who had any relevant video was JoglyGarcia and Javier Delgado. See attached Exhibit D - PlaintiHS'Resmses to Universal's Intemgatories at #4. Maintiffs didnot mention either plumber or their attorneys as persons who possessedrelevant video. Plaintiffs were intimatelyinvolved in the failure to disclose the evidence. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 15 of 23 4. The delayin disclosingthe video(s)has prejudicedUniversal. First,Universal relied on the 2018 video when it denied Plaintiffs' Claim. The productionof the purportedlyirrelevant video essentially caused Universal's allegedbreach. Further,given the existence of the 2018 Video, Universal could all but rest its case on Plaintiffs' failure to promptly notify Universal of the Claim-a complete defense to this action. One month before trial, however, Plaintiffs' counsel firstindicated to Universal that the video counsel had supplied to Universal may not be relevant at all. This gravelyaffects Universal's defense-including having impacted Universal's decisions regardingexpert witnesses. Further,to the extent that other videos exist,Plaintiffs' failure to disclose the videos2 has prevented Universal from having the videos analyzed and from garneringtestimony from those individuals who took the video regardingthe contents thereof. Universal did not learn of the existence of the videos until after discoveryhad closed. No efforts on Universal's part can cure its substantial prejudice.Universal's prejudicecannot be overstated. 5. Whether Plaintiffs' counsel can offer reasonable justification for (1)submittingthe 2018 Video in the first place;(2)not disclosingthe other videos in discovery;and (3)continuing to keep the videos from Universal even after their existence has come to light:remains to be seen. Universal cannot imagine any possiblereasonable justification for this course of conduct. 6. This factor seems most applicablewhere a party has defied orders ofthe court. Such is not the case here. However, significant problems ofjudicialadministration may ensue should this Court decide not to dismiss this action due to Plaintiffs' and their counsel's behavior. 2 As of this filing,Plaintiffs have yet to produce either video taken by either plumbing company. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 16 of 23 Universal will present the efforts that would be necessary to cure Universal's prejudice below. In sum, analysisofthe Kozel factors reveals that each one-except perhapsthe fact that Plaintiffs' counsel has not been sanctioned-fall in favor of dismissal of this action. Dismissal is the proper course. In their Interrogatoryresponses, Plaintiffs lied about the existence of the two videos. "When a party lies about matters bearing directlyon the issue of damages, dismissal is an appropriatesanction." Distetano v. State Farm Mut. Auto. Ins. Co., %46 So. ld 571, 574 (Fla.4th DCA 2003).There are no damages ifthe 2018 Video is relevant-and non-disclosure ofthe other two videos can only be seen as an attempt to lull Universal into basing its defense on the existence ofthe 2018 video. There was a hole in the cast iron pipes in the 2018 Video. See Facts at 711, supra. The existence of the hole told Universal that eight(8)months before Plaintiffs' Claim, water was seepinginto the Property-and Plaintiffs knew about it. Yet Plaintiffs claimed that all the water damage to the Property was caused by the allegedApril 2019 loss. This implicatesthe constant and repeatedseepage clause in the Policy: SECTION - I PERILS INSURED AGAINST A. Coverage A - Dwelling And Coverage B - Other Structures 1. We insure against direct physical loss to property described in Coverages A and B. However, loss does not include and we will not pay for any "diminution in value". 2. We do not insure, however, for loss: Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 17 of 23 (5) Constant or repeated seepage or Ieakage of water or steam or the presence or condensation of humidity, moisture or vapor, over a period of weeks, months or years, unless such seepage or Ieakage of water or steam or the presence or condensation of humidity, moisture or vapor, and the resulting damage is unknown to all "insureds" and is hidden within the walls or ceilings or beneath the floors or above the ceilingsof a structure; Exhibit G - Insurance Policy at pages 14-15 of UPCIC HO3 15 05 18. BasieaWy, damage to the Property from constant or repeatedseepage may have been covered if (1)it was hidden under the slab as may be relevant here; and (2) it was unknown to all insureds. Id. The 2018 Video demonstrates-or may demonstrate if it was properlydisclosed-that the insureds knew about the hole in the pipe and the seepage under the slab long before they (1)notified Universal of the same or (2)made any attempt to cure the problem. Then, one month before trial,Plaintiffs reveal the existence of two other videos and indicate that they have no knowledge of the 2018 Video. The veracityof their statements potentially puts damages back on the table. Universal,however, cannot discover the veracityof the statements because Plaintiffs waited until discoveryhad closed to reveal the other two videos. This obfuscation-which bears upon damages-warrants dismissal of Plaintiffs' lawsuit. C. Standard Where Dismissal Is Unnecessary To Cure Prejudice "After considering[the Kozel] factors,if there is a less-severe sanction available than dismissal with prejudice,the court should use it." Chappelle v. S. Fla. Guardianship Program, Inc., 169 So. 3d 291, 294 (Fla.4th DCA 2015). It is imperativethat the lesser sanction imposed cure the prejudiceworked on the opposing party. See Binger v. King Pest Control, 401 So. 2d 1310,1314 (Fla.1981): Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 18 of 23 Prejudicein this sense refers to the surprisein fact of the objectingparty, and it is not dependent on the adverse nature of the testimony.Other factors which may enter into the trial court's exercise of discretion are: (i)the objectingparty'sabilityto cure the prejudiceor, similarly, his independentknowledge ofthe existence ofthe witness;(ii) the callingparty'spossibleintentional,or bad faith,noncompliance with the pretrial order;and (iii) the possibledisruptionof the orderlyand efficient trial of the case (or other cases). While Binger dealt specifically with the surpriseassociated with late disclosure of a witness,the factors espousedthere apply equallyto late disclosure of evidence. Reive v. Deutsche Bank Nat. Tr. Co., 190 So. 3d 93, 94 (Fla.4th DCA 2015). We conclude that the court's denial of the continuance togetherwith the admission of witnesses and documents not timelydisclosed to the defendant constituted "surprisein fact" in this case and violated Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981).The failure to give adequatenotice of evidence and witnesses constitutes a due process violation. S.Z v. Dep't ofChildren & Family Servs., %73 So.2d 1277,1277 (Fla.3d DCA 2004) (deliveryof discoverypacket the Friday before a Monday trial constituted "trial by ambush" and violated the defendant's due process rights). As the trial court abused its discretion in denyingthe motion to continue the trial, and then in permittingthe introduction of extremely late-listed witnesses and documents to the prejudiceof the defendant, we reverse and remand for a new trial. See also, Thompson v. Wal-Mart Stores, Inc., 60 So. 3d 440 (Fla. 3d DCA 2011)-,Claussen v. State, Dept. of Transp.,750 So. 2d 79 (Fla.2d DCA 1999)-,Tomlinson-Mckenzie v. Prince, 718 So. 2d 394 (Fla.4th DCA 1998);Smith v. Univ. Med. Ctr., Inc.,559 So. 2d 393 (Fla.1st DCA 1990). D. In The Alternative, This Court Should Enter An Order That Would Cure The Tremendous Prejudice Inllicted Upon Universal By Plaintiffs' Repeated Failures To Disclose Relevant Evidence Dismissal is the appropriateremedy given Plaintiffs' and their counsel's conduct. However, Universal understands that dismissal is a drastic remedy that this Court may be hesitant to impose. Should that be the case, significantmeasures would have to be taken to cure the prejudiceworked upon Universal by Plaintiffs' behavior. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 19 of 23 Plaintiffs' submission ofthe 2018 Video, their failure to disclose the existence ofthe other videos priorto November 10, 2021, and their subsequent failure to provide Universal a copy of the videos, has severelyprejudicedUniversal by: 1. Contaminating Universal's claims investigation process and causing Universal to deny the Claim based on faultyinformation; 2. LullingUniversal into relyingon "evidence" that the damaged drainagepreceded the claimed date of loss by several months; 3. HinderingUniversal's ability to settle this litigation; and 4. PermittingUniversal to relyon faultyinformation as it makes litigation decisions-most pointedlythe decision to hire experts and engage in other discoveryefforts. Based on the substantial prejudicethat Plaintiffs' tactics have worked on Universal, the only to begin to cure such prejudiceis to: 1. Compel Plaintiffs to provideUniversal with a copy of all videos in their possessionthat have anythingto do with the Claim, the plumbing system at the Property,or damages; 2. Continuing this matter to afford Universal the opportunityto obtain a causation expert who can analyzethe videos and other evidence and render an opinion; 3. Re-opening discoveryto afford Universal the opportunityto discover facts and information that this newly revealed evidence bears upon; 4. PermittingUniversal to present evidence of the disclosure ofthe October 18, 2018 Video to the jury as evidence that Universal did not breach the insurance agreement; and 5. Limiting Plaintiffs' entitlement to attorney'sfees based on the additional efforts Plaintiffs' and Plaintiffs' counsel obfuscation has caused and will continue to cause should this Court not dismiss this matter. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 20 of 23 Concerning Universal's alternative request, it is axiomatic that the Florida appellatecourts abhor "trial by ambush." See, e.g., In re Estate of Lochhead, 443 So. 2d 283,284 (Fla.4th DCA 1983) ("One laudable purpose of disclosure is to eliminate surpriseand trial by ambush. That purpose could have been achieved in this case by permittingappelleesto depose the witness or simply by grantinga continuance."). Avoidance of prejudiceshould always be the trial court's guidinglightin the face ofrequestssuch as this. See Binger v. KingPest Control,401 So. 2d 1310 (Fla.1981).As the Florida Supreme Court quoted approvingly in Binger, "[al search for truth and justicecan be accomplished only when all relevant facts are before the judicialtribunal. Those relevant facts should be the determiningfactor rather than gamesmanship, surprise,or superior trial tactics." Id. (citation omitted). Here, the late discoveryof (1) the potentialirrelevance of the 2018 Video; and (2) the existence of other potentially relevant videos; have substantially prejudicedUniversal. Universal cannot possiblybe preparedto defend this matter at trial as currentlyscheduled without retooling their entire defense around video evidence newly disclosed,but not yet produced.The retooling for a future trial date will requireadditional fact discovery and expert discovery and disclosure. Finally,Plaintiffs and Plaintiffs' counsel cannot reap financial benefits from their contumacious behavior. Attorney'sfees-should they be awarded at all-should be limited to account for the additional that will be requiredby both Plaintiffs' counsel (forwhich they should not be paid)and by Universal's counsel (forwhich Universal should not have to incur the cost). IV. CONCLUSION Based on the foregoing,Universal requests that Plaintiffs entire action be dismissed with prejudice. Universal's prejudicein this matter cannot be cured. Since June of 2019-prior to this action being has been expending resources investigatingthe Claim and Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 21 of 23 defending this action based on allegedlyfalse information that Plaintiffs' counsel provided. Universal is now faced with the prospect of having to defend againstevidence that was never disclosed duringdiscoveryand stillhas not been produced to Universal-all while reelingfrom its evidence of a priorexistinghole in Plaintiffs' plumbing system being potentiallyirrelevant. Dismissal is the proper course of action here. No other measures can cure Universal's prejudice. Still, however, Universal is obligedto givethis Court something that would get as close to curingits prejudiceas possible.To that end, Universal has come up with the following: 1. Compel Plaintiffs to provideUniversal with a copy of all videos in their possessionthat have anythingto do with the Claim, the plumbing system at the Property,or damages; 2. Continue this matter to afford Universal the opportunityto obtain a causation expert who can analyzethe videos and other evidence and render an opinion; 3. Re-open discoveryto afford Universal the opportunityto discover facts and information that this newly revealed evidence bears upon; 4. Permit Universal to present evidence of the disclosure of the October 18, 2018 Video to the jury as evidence that Universal did not breach the insurance agreement; and 5. LimitingPlaintiffs' entitlement to attorney'sfees based on the additional efforts Plaintiffs' and Plaintiffs' counsel obfuscation has caused and will continue to cause should this Court not dismiss this matter. WHEREFORE, Defendant, UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, respectfullyrequests this Court to enter an order grantingthe Defendant's Motion to Dismiss Plaintiffs' Claim With Prejudice.As a distant and far less than perfectalternative to the appropriate relief of dismissal,Universal prays that this Honorable Court enter an Order. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 22 of 23 1. Compelling Plaintiffs to provideUniversal with a copy of all videos in their possessionthat have anythingto do with the Claim, the plumbing system at the Property, or damages; 2. Continuingthis matter; 3. Re-open fact and expert discovery; 4. Permit Universal to present evidence of the disclosure of the October 18, 2018 Video to the jury;and 5. Limiting Plaintiffs' possibleentitlement to attorney'sfees. Mitchelle Ordonez and Doreen Ordonez vs. UPCIC CASE NO.: CACE-19-021656 Page 23 of 23 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoingwas furnished via E- Service and/or E-Portal to: Dalyz Limia, Esq.; Gisel Brito Silverberg,Esq., SILVERBERG I BRITO, PLLC and Benjamin R. Alvarez, Esq., ALVAREZ, FELTMAN, DA SILVA & COSTA, P.L. (eservice@silverbergbrito.com; teamdelta@silverbergbrito.com: ben@afdc.legal: Counsel for Plaintiffs, on the 12th day of January, 2022. M Attorney Defendant Universal Property & Casualty Company P.O. Box 9388 Fort Lauderdale, Florida 33309 Telephone: (954) 958-3319 Toll-Free: 1-833-658-8594 6Judges Only) Facsimile: (954) 958-1262 By: /s/ Simone Boston Simone Boston, Esq. Florida Bar No. 58864 For Service of Court Documents onlv: Primary: upciceservice02(*universalproperty.com Secondary: jsl130(*universalproperty.com Tertiary:sb0922(*universalproperty.com For Scheduling Matters: jsl 130(*universalproperty.com *Please do not send any inquiries or scheduling matters to upciceservice@universalpropertv.com or upciceservice02@universalpropertv.com. Exhibit 66A,, SilverbergIBrito, PLLC Attorneys At Law 1200 NW 78'IJAve, Suite 302 F,mail: eservice@silvcrbergbrito.com Miami, FI, 33126 Phone: (305) 735-3966 www,Kilverbergbrito.com Fax: (305) 440-1055 July 18, 2019 Sent Via Entail & Facsimile Alder Adj usting Corporation Universal Property & Casualty Insurance Company Attention: Eduardo Campos claimshelp@universalproperty.com Fax: (954) 958-1206 Re: Insured(s): MitcheHe R. Ordonez & Doreen B. Ordonez Claim Number: FL19-0117529 Policy Number: 1501-1804-4877 Date ofLoss: April 5, 2019 Property Address: 610 SW 69? Way, Pembroke Fines, FL 33023 Dear Mr. Campos: As you are aware. our law firm has been retained by Mitchelle R. Ordonez & Doreen B. Ordonez ("Clients")to represent them regardingthe loss (the "Loss") that occurred at the above referenced property. We are in receiptofyour correspondence dated June 13,2019 and July 9, 2019 wherein Universal is requestingvarious documents to further investigatethe above-mentioned claim. Pursuant to Universal's request. enclosed pleasefind the documentation requested: 1. As you are aware, the inspectionof the above-mentioned property took place on June 17: 2019, 2. A copy ofthe repairestimate preparedby SpecialtyPublic Adjusters,Inc. 3. A copy ofthe invoice from R&I Plumbing Service,Corp.; 4, A check from the Insureds to R&I Plumbing Service, Corp. for partialpayment; 5, A copy of the invoice from Monopoly Plumbing; 6. 76 photographs depictingsome ofthe damages to the above-mentioned property; 7. Please provide three (3) dates and times to conduct the recorded statement. At this time, the insureds have provided all documents in their possession pursuant to Universal's requests. However, the insured reserves his rightsubmit additional documents should theybecome available. Should you have any questionsor concerns, pleasedo not hesitate to contact our office. Sincerely, /s/ Gisel Brim Grisel Brim, Esq. Enclosures as stated. E??1?il?it "B" From: Xanathy Gonzalez Sent Friday,July26, 2019 3:08 PM To: Eduardo Campos; Claims Help CC Gisel Brito, Esq.;Yasimi Martinez Subject: RE: Claim FL19-0117529/Insured: Mitchelle Ordonez and Doreen Ordonez Attachments: CLAIM NO.: FL19-0117529/ MITCHELLE R. ORDONEZ & DOREEN B. ORDONEZ Importance: High Good Afternoon Mr. Campos, The attachments were providedthrough a We-Transfer link,as mentioned in the originalemail sent previously to Universal and attached to this email for your review. I have a created another link with all the attachments mentioned in said correspondence. Please be aware that the followinglink expireson August 2, 2019. Please download all attachments priorto the links expiration. Should you have any issues accessingany attachments,pleaselet us know immediately. https://wetrans fer.com/downloads/ecOf'7aae80a9776f436cf153cec2aeOf20190726175934/83d3045be2abe359a3 2cc9bb0654896620190726175934/307643 Thank you and should you have any questionsor concerns, pleasedo not hesitate to contact our office. Sincerely, Xanathy Gonzalez SilverbergIBrito, PLLC P: 305-735-3966 F: 305-440-1055 A: 1200 NW 78th Avenue, Suite 302 Miami, Florida 33126 E: xanathy@silverbergbrito.com Confidentiality Notice: This e-mail contains information intended only for the use of the individual or entity named above. If the reader of this e- mail is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, any dissemination, publication or copying of this e- mail is strictlyprohibited. The sender does not accept any responsibility for any loss, disruption or damage to your data or computer system that may occur while using data contained in,or transmitted with, this e-mail. If you have received this e-mail in error, please immediately notify us by return e- mail. Thank you. From: Eduardo Campos Sent: Friday,July 26, 2019 12:18 PM To: eservice Subject: FW: Claim FL19-0117529/Insured: Mitchelle Ordonez and Doreen Ordonez Good afternoon, 1 We have received your letter dated July 18, 2019 regarding the above insured; however, none of the attachments were received; the items pending would be: A copy of SpecialtyPublic Adjusters, Inc. Invoice from R&1 Plumbing Service, Corp R & I Plumbing Service Corp partialpayment Invoice from Monopoly Plumbing 76 photographs. Your client's recorded statement needs to be scheduled and the following dates/times are currentlyopen: 08/06 From 2:30 PM to 4:30 PM 08/07 From 10:00 Am to 4:00 PM 08/08 From 11:30 AM to 4:00 PM Please advise Thank you Eduardo Campos Claims Examiner Alder Adjusting Corporation (W): (954) 958-1200 ext:6442 -.universalproperty.com ALDER .I%1'?%-I-%'?I It>dtlll K Join us and GO GREEN! Go paperless with Universal. Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s)and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient and received this in error, please contact the sender by reply e-mail. You are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictlyprohibited. 2 Subject: CLAIM NO.: FL19-0117529/ MITCHELLE R. ORDONEZ & DOREEN B. ORDONEZ From: ", 'Xanathy Gonzalez " To: ., , 'Claimshelp@universalproperty. com'- Date: 2019-07-18 08:55:54 Good Afternoon Mr. Campos, Attached please find the following correspondence in reference to the above-mentioned claim for your review. Please be aware, we have included a link to the attachments enclosed to said correspondence. Please be advised the following link expires on July 25, 2019. Please download all attachments prior to the links expiration. https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwetransfer.com%2fdown1oads%2fb0b5b78e9 20b8f2b93be000d85203db620190718165200%2feffc3bf39b6fdd9f069b9f734ea4574520190718165200%2fd 04a41&c=E, l,byOBLjLkfPZ0nnm2LFHrmxNj 31LCScHfnUYUjjUE- DXVMatYYqATldENpmj JhpQt0tjwguCvCj Fnjw0h81JywqXYDL6CcC9LKUiDufJd9qqC&typo=0 Thank you and should you have any questions or concerns, please do not hesitate to contact our office. Sincerely, [cid:image001.jpg@01DZF711.814D09A0] Xanathy Gonzalez Silverberg IBrito, PLLC P: 305-735-3966 F: 305-440-1055 A: 1200 NW 78th Avenue, Suite 302 Miami, Florida 33126 E: xanathy@silverbergbrito.com Confidentiality Notice: This e-mail contains information intended only for the use of the individual or entity named above. If the reader of this e-mail is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, any dissemination, publication or copying of this e-mail is strictly prohibited. The sender does not accept any responsibility for any loss, disruption or damage to your data or computer system that may occur while using data contained in, or transmitted with, this e-mail. If you have received this e-mail in error, please immediately notify us by return e-mail. Thank you. From: Xanathy Gonzalez Sent Thursday, July 18, 2019 12:56 PM To: Claims Help CC Gisel Brito, Esq. Subject: CLAIM NO.: FL19-0117529/ MITCHELLE R. ORDONEZ & DOREEN B. ORDONEZ Attachments: 7.18.19 Letter to IC.pdf Importance: High Good Afternoon Mr. Campos, Attached pleasefind the followingcorrespondencein reference to the above-mentioned claim for your review. Please be aware, we have included a link to the attachments enclosed to said correspondence. Please be advised the followinglink expireson Julv 25, 2019. Please download all attachments priorto the links expiration. https://wetransfer.com/downloads/bOb5b78e920b8f2b93be000d85203db620190718165200/effc3bf39b6fdd9f06 9b9f734ea4574520190718165200/d04a41 Thank you and should you have any questionsor concerns, pleasedo not hesitate to contact our office. Sincerely, Xanathy Gonzalez SilverbergIBrito, PLLC P: 305-735-3966 F: 305-440-1055 A: 1200 NW 78th Avenue, Suite 302 Miami, Florida 33126 E: xanathy@silverbergbrito.com Confidentiality Notice: This e-mail contains information intended only for the use of the individual or entity named above. If the reader of this e- mail is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient,any dissemination, publication or copying of this e- mail is strictlyprohibited. The sender does not accept any responsibility for any loss, disruption or damage to your data or computer system that may occur while using data contained in, or transmitted with, this e-mail. If you have received this e-mail in error, please immediately notify us by return e- mail. Thank you. 1 Exhibit 66C ,, Filing# 104669813 E-Filed 03/10/2020 07:25:08 PM MITCHELLE R ORDONEZ, an individual, IN THE CIRCUIT COURT OF THE 17TH and DOREEN B ORDONEZ, an individual, JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Plaintiffs, V GENERAL JURISDICTION DIVISION UNIVERSAL PROPERTY & CASUALTY CASE NO.: CACE-19-021656 INSURANCE COMPANY, a Florida governmental entity, Defendant. i PLAINTIFFS' RESPONSES TO DEFENDANT'S FIRST REQUEST TO PRODUCE COME NOW, the Plaintiffs,MITCHELLE R ORDONEZ, and DOREEN B ORDONEZ (collectively the "Plaintiffs"), hereby respond to the Defendant's, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY (the"Defendant"),First Request to Produce to Plaintiffs, and in support thereof states as follows: GENERAL OBJECTIONS 1. The Plaintiffs object to the document requests to the extent that they seek information that is protectedfrom disclosure by the attorney-client privilege, the attorney work productdoctrine,or any other privilegeor immunity from disclosure. 2. The Plaintiffs objectto these document requests to the extent that they seek information within the possessionof entities,partiesor persons other than the Plaintiff. 3 The Plaintiffs objectto these document requests to the extent that the Defendant seeks to impose requirementsor obligationsinconsistent with the Florida Rules ofCivil Procedure. 4. The Plaintiffs' failure to objectto a document request on a particularground shall not be construed as a waiver of her rightto objecton that ground or any additional ground at a later time. PAGE 1 OF 7 SILVERBERGIBRITO, PLLC 1200 NW 78th Avenue, Suite 302, Miami, FL 33126 ? Tel (305) 735-3966 ? Fax (305) 440-1055 5. The Plaintiffs objectto the document requests to the extent that theyare ambiguous, vague, overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence,and not limited to the allegationcontained in the Complaint. 6. The Plaintiffs objectto each and every one ofthe document requests, to the extent that (a)the discoverysought by any such request is unreasonably cumulative or duplicative,or is obtainable from some other source that is more convenient, less burdensome, or less expensive, and/or (b) compliance with any such request would be unduly burdensome, expensive,annoying or oppressive. 7. Inso far as the productionof any document by the Plaintiffs may be deemed to be a waiver of any privilegeor right,such waiver shall be deemed to be a limited waiver with respect to that particular document only.Any inadvertent productionof any document shall not be deemed or construed to constitute a waiver of any privilegeor rightof the Plaintiffs,whom reserve the rightto demand that the Defendant returns any such document and all copiesthereof. 8 To the extent the Plaintiffs indicate below that documents will be produced or will be produced subjectto an appropriateConfidentiality Orde