Van Ngo v. Centennial Ins. Co., et al.
| Docket Number: | 2003-CA-02181-COA | |
| Oral Argument: | 10-19-2004 | |
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| Court of Appeals: |
Opinion Date: 01-04-2005 Opinion Author: LEE, P.J., Holding: AFFIRMED IN PART; REVERSED AND RENDERED IN PART |
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| Additional Case Information: |
Topic: Insurance - Discovery violations - Dismissal without prejudice - M.R.C.P. 37(b)(2) - Condition precedent to refiling suit - M.R.C.P. 37 (e) - Hearing - Dismissal - Acquiring medical records without authorization Judge(s) Concurring: BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., Non Participating Judge(s): ISHEE, J., Concurs in Result Only: KING, C.J., Procedural History: Dismissal Nature of the Case: CIVIL - INSURANCE |
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| Trial Court: |
Date of Trial Judgment: 08-29-2003 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: Dismissal and Dismall w/ prejudice |
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| Party Name: | Attorney Name: | |||
| Appellant: | SEN VAN NGO D/B/A M/V "CAPT. SEN" |
TIMOTHY P. KOTTEMANN |
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| Appellee: | CENTENNIAL INSURANCE COMPANY, G & M MARINE, INC., AND POINT CADET INSURANCE, INC. | BENJAMIN MCRAE WATSON RICHARD P. SALLOUM |
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| Topic: | Insurance - Discovery violations - Dismissal without prejudice - M.R.C.P. 37(b)(2) - Condition precedent to refiling suit - M.R.C.P. 37 (e) - Hearing - Dismissal - Acquiring medical records without authorization |
| Summary of the Facts: | Captain Sen Ngo was steering his boat beneath the Biloxi/Ocean Springs drawbridge when the boat collided with the bridge. Ngo's boat was insured by Centennial Insurance Company. Centennial investigated the claim and paid Ngo's claimed property damage less $1,750 in damages which Centennial attributed to damage previously sustained by Ngo's vessel. Ngo filed suit against Centennial, G & M Marine, and Point Cadet Insurance Company. Centennial and G & M Marine filed an answer, and Point Cadet filed a motion to dismiss. Centennial and G & M Marine propounded interrogatories and requests for production of documents on Ngo. Ngo requested an extension of time to respond to the discovery requests. Centennial, G & M Marine and Ngo agreed that Ngo would respond to the discovery by February 28, 2003. On March 13, 2003, after receiving no response, Centennial and G & M Marine filed a motion to compel. Ngo argued that his failure to comply with the discovery requests was due, in part, to a tuberculosis diagnosis and that because of his medication schedule, it was not possible for him to assist in completing the discovery requests. Centennial and G & M served a subpoena duces tecum on Ngo's doctor, requesting Ngo's medical records. On April 17, the court ordered that Ngo respond to the discovery requests, and on May 8, Ngo submitted responses to some of the requests. On July 14, Centennial and G & M Marine filed a motion to dismiss or to compel proper discovery responses regarding Ngo's responses to certain interrogatories and certain requests for production. Ngo filed a motion for contempt and sanctions against Centennial and G & M Marine claiming that the subpoena duces tecum violated the physician-patient privilege. The court denied Ngo's motion for sanctions and contempt and dismissed Centennial and G & M Marine without prejudice, but included in his order a provision "that Plaintiff shall not re-file a lawsuit against such Defendants without fully responding to their aforesaid Interrogatory and Requests for Production." The court also dismissed with prejudice all claims against Point Cadet. Ngo filed a motion to alter, amend or vacate the order dismissing Centennial and G & M Marine, which the court denied. Ngo appeals. |
| Summary of Opinion Analysis: | Issue 1: Discovery violations Ngo argues that the court erred in dismissing Centennial and G & M Marine without prejudice due to the alleged discovery violations. M.R.C.P. 37(b)(2) grants the court a number of options when sanctioning for discovery violations, including striking pleadings, staying the proceedings, or dismissing the action. A dismissal with prejudice requires the consideration of a number of factors including the disobedient party’s willfulness and bad faith, and prejudice incurred by the other party. However, this case involves a lesser sanction, dismissal without prejudice. Although Ngo had some difficulty communicating with his attorney due to his illness and the language barrier, the court and defense counsel were thwarted in their attempts to accommodate Ngo and his counsel in their difficulties. Despite numerous extensions and the court’s order to respond to the discovery, the discovery went unanswered. Therefore, the judge’s action in dismissing the case without prejudice is clearly within his discretion. Ngo also argues that the court erred in ordering that he respond to the discovery requests prior to re-filing any suit against Centennial and G & M Marine. Although M.R.C.P. 37 (e) grants the trial court latitude in allowing additional sanctions, the court in this case did not act within its discretion in requiring that Ngo respond to discovery in a previously dismissed case as a condition precedent to re-filing his claims. To issue an injunction, a court must consider whether there exists a substantial likelihood that plaintiff will prevail on the merits; the injunction is necessary to prevent irreparable harm; the threatened harm to the applicant outweighs the harm the injunction might do to the respondents; and entry of the injunction is consistent with the public interest. There is no evidence here that the judge considered any of the relevant factors in his order requiring Ngo to respond to the discovery prior to re-filing his complaint. Issue 2: Hearing Because Ngo cites no authority in support of his contention that the court erroneously denied a hearing on his motion to alter, amend, or vacate the judgment, his argument is barred from consideration. Issue 3: Dismissal Ngo argues that the court erred in dismissing Point Cadet with prejudice. In Count I of the complaint, Ngo states his claim for a full payment of benefits under the insurance policy. Point Cadet argues that it has no responsibility to pay Ngo, for Point Cadet is not a party to the insurance contract between Ngo and Centennial. Assuming that the insurer, Centennial, owes payment under the policy, Ngo has not pled any facts to support a contention that Point Cadet interfered with proper payment under the policy. In Count II, Ngo alleges that the defendants refused to pay his entire claim in bad faith and that the defendants attempted to coerce Ngo into withdrawing his insurance claim. Assuming that these allegations are true, Ngo has no claim against Point Clear, for it is not a party to the insurance contract. In Count III, Ngo lists related causes of action by defendants acting in concert including breach of contract, negligence, statutory breach, fraud, and other wrongful. Assuming that the defendants acted recklessly, Ngo failed to allege any duty which Point Clear owed Ngo. There were no facts alleged to support a claim of fraud against Point Cadet or to support a claim of "statutory breach." Count IV of the complaint urges that punitive damages be assessed against the defendants. However, to be liable for punitive damages, Point Cadet must first be liable for actual damages. Because Ngo did not plead claims against Point Cadet for which relief could be granted, neither actual nor punitive damages are appropriate. Issue 4: Sanctions Ngo argues that the court erred in not sanctioning Centennial and G & M Marine for acquiring his medical records without authorization. Ngo fails to cite any authority or direct the Court to a section of HIPAA in support of his general allegation that these actions constituted a violation of the Healthcare Insurance Portability and Accountability Act. Therefore, this issue is barred from consideration. |
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