Kimble Mckay and Cory Stewart (St. Petersburg, FL) (Construction) defended the interests of an insured contractor, Phorcys Builders Corp. in a premises liability case arising out of a workplace incident. The Plaintiff was, allegedly, an employee of Phorcys Builders Corp.’s subcontractor and co-Defendant, KNM Constructions Corp., on the date of the incident. While performing his assigned scope of work on an upper floor of the construction site, Plaintiff was badly shocked by electricity when a 24-foot piece of rebar he was manipulating contacted a live powerline nearby. Plaintiff was airlifted to a nearby hospital where doctors treated him for severe electrical burns to his extremities and amputated a portion of his foot. Plaintiff ultimately lost use of his hand and foot.
The property owners, the general contractor, and other subcontractors were joined as co-Defendants to Plaintiff’s case. To further complicate the litigation proceedings, the general contractor and the property owner served compulsory crossclaims on their co-Defendants. Although there were issues surrounding comparative fault among the co-Defendants, the global exposure of Plaintiff’s claims for damages would likely have been in a multi-million-dollar range.
However, Plaintiff began a pattern of behavior that indicated he had no intention of participating in the lawsuit or obeying the Court’s orders. Our office served the Plaintiff with basic discovery requests in May 2024. When the Court implemented a Case Management Order in January 2025, our office had not received any response from Plaintiff regarding the discovery requests. In January 2025, the Court entered an order requiring Plaintiff to respond to the discovery requests. Thereafter, our office served all the discovery requests we had prepared for the litigation, including those pertaining to experts and Plaintiff’s damages. Again, Plaintiff failed to respond to discovery or participate in the litigation and our office obtained another order requiring Plaintiff to respond. After months of requesting Plaintiff’s deposition, Co-Defendant KNM Constructions Corp. obtained an order compelling Plaintiff to participate in a deposition. Plaintiff appeared for his deposition in a car at an unknown location and abruptly disconnected from the proceeding before the parties were able to pose any substantive questions. He never re-appeared.
Our office took the lead with co-Defendants Gables on the Green II LLC and KNM Constructions to prepare a joint motion to strike pleadings, dismiss, or impose sanctions upon Plaintiff for his failure to respond to discovery or participate in this litigation. It is extremely difficult to have a case dismissed in this manner because the law in the State of Florida considers it “the most severe of all sanctions.” For several months, the presiding judge was reluctant to dismiss the case and instead implemented a monthly case management conference requirement to address the parties’ issues and to afford Plaintiff due process and additional time to respond.
However, at the final hearing in December 2025, Plaintiff Jose Gallegos again failed to appear before the Court or substantially participate in this lawsuit. The Court recognized that Plaintiff directly violated no less than five (5) court orders procured by our office and the other Defendants in this matter. Our office argued again that a dismissal with prejudice was appropriate on multiple grounds as a sanction for failing to appear and for failing to participate in discovery. This time, the Court agreed and the case was dismissed with prejudice as “the most severe of all sanctions.”