The Williamses sued Prepared for breach of contract.

Before the Williamses filed their trial witness list, Prepared sought to depose the adjuster. It issued notices of deposition duces tecum directed to both the adjuster and an unnamed corporate representative of the company with whom the adjuster apparently was affiliated.

Prepared, however, was unable to depose the adjuster and the Williamses removed him from their witness list.

Prepared moved for sanctions.

The trial court struck the Williamses' pleadings and imposed sanctions on their law firm for bad faith litigation. It found that based on the letter of representation sent by the law firm to Prepared, the adjuster was an agent of the law firm.

The dispute reached an appellate court.

The Appellate Court's Decision

The appellate court reversed, ruling that that the Williamses and their law firm could not be held accountable for the failure of a non-party to appear for a deposition.

In its decision, the appellate court found no rule or court order that the Williamses or their attorneys had not obeyed.

The appellate court added that it found “nothing” to support the trial court's order or its decision to involuntarily dismiss the lawsuit. Moreover, it continued, to the extent the trial court found that the law firm failed to obey a court order and inform the adjuster that he was required to be available for a subpoena, the record revealed “no evidence supporting such a finding.”

The appellate court also ruled that, to the extent the trial court was focused on the law firm's failure to produce the adjuster for a deposition, “the trial court did not cite to any authority requiring the law firm to do so and we ourselves are unaware of any.” The adjuster was “not the type of witness” a party was required to produce, such as an expert or corporate representative, the appellate court stated. Rather, the adjuster was a “fact witness.”

The appellate court said that although sanctions could be based on a party's failure to provide an address for its witness, the law firm had provided a valid address for the adjuster and the adjuster had been served there.

In addition, the appellate court decided that the trial court also erred in basing a finding of noncompliance on a determination that the adjuster was an agent of the law firm. The original letter of representation sent by the law firm to the insurance company provided that the insurance company could speak to the adjuster “or any of our agents” about specified topics. To the extent the letter of representation sent by the law firm to Prepared gave the appearance of an agency relationship between the firm and the adjuster, the evidence and record was insufficient to establish that the adjuster's failure to appear for a deposition fell within the scope of any such agency relationship, the appellate court declared.

The appellate court concluded that because the trial court erred in striking the Williamses' pleadings based on their law firm's failure to produce the adjuster for deposition, it also erred in imposing attorneys' fees based on the same theory. The record did “not support a finding of bad faith against the [Williamses'] law firm.”

The case is Williams v. Prepared Ins. Co., No. 4D18-692 (Fla. Ct. App. June 12, 2019). Attorneys involved include: Melissa A. Giasi of Sivyer Barlow & Watson, P.A., Tampa, for appellants. Melinda S. Thornton and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for appellee.