NOT FINAL VERSION OF OPINION
Subsequent Changes at 31 Fla. L. Weekly D368b
31 Fla. L. Weekly D116a
Insurance — Credit life — Beneficiary’s action against insurer which denied coverage under credit life policy on ground that decedent was ineligible for coverage because of his medical history, alleging fraudulent inducement, breach of fiduciary duty, unjust enrichment, fraud, and first-party bad faith — Discovery — Order compelling discovery did not improperly compel insurer to disclose information that was protected by work product doctrine, but instead made clear that work product materials were not ordered to be produced and that if work product issue arose later, trial court would address the matter upon appropriate motion — Order did not improperly compel production of information about claim files, claims handling practices, and business policies before coverage had been established — Complaint included causes of action other than bad faith, and trial court properly found that documents sought were within scope of discovery as to those claims — With regard to insurer’s argument that discovery requested was not relevant, proper test for discovery purposes is not relevance, but whether discovery is reasonably calculated to lead to admissible evidence — Moreover, insurer’s corporate representative has already testified extensively at his deposition regarding the topics at issue without objection — No departure from essential requirements of law resulted from trial court’s permitting plaintiff to continue deposition of insurer’s corporate representative — Although insurer argued that representative was a “senior management executive” and plaintiff was not entitled to take this “apex” deposition until she had exhausted other discovery and could demonstrate that the representative was uniquely able to provide relevant information that could not be obtained from other sources, the representative at issue was not an “apex” level executive, but an operational level vice present who reviewed all credit insurance claims in excess of $10,000 — Representative was ultimately responsible for denial of claim and, moreover, had already been deposed by plaintiff for one day without this objection being raised
JMIC LIFE INSURANCE COMPANY, Petitioner, v. NANCY L. HENRY, Respondent. 5th District. Case No. 5D05-1133. Opinion filed December 30, 2005. Petition for Certiorari Review of Order from the Circuit Court for Marion County, Jack Singbush, Judge. Counsel: Matthew J. Jowanna of Luks, Santaniello, Perez, Petrillo & Gold, Tampa, Daniel J. Santaniello of Luks, Santaniello, Perez, Petrillo & Gold, Fort Lauderdale, and J. Andrew Keyes and Katherine P. Chiarello of Williams & Connolly LLP, Washington, D.C., for Petitioner. Robert R. Hearn of Zuckerman Spaeder LLP, Tampa, for Respondent.
(PALMER, J.) JMIC Life Insurance Company has filed a petition seeking certiorari review of the trial court’s order compelling it to make three of its employees available for deposition, to produce certain documents, and to answer certain interrogatories. Concluding that JMIC has failed to establish that the trial court’s order departs from the essential requirements of law, we deny the petition.
Nancy L. Henry and her now deceased husband, George, purchased a credit life insurance policy from JMIC in connection with their purchase of an automobile. Upon Mr. Henry’s death, Mrs. Henry filed a claim with JMIC seeking payment under said policy. JMIC denied the claim contending that Mr. Henry was not eligible to be covered by the policy because of his medical history.
Mrs. Henry responded to JMIC’s denial by filing a five-count complaint alleging claims of fraudulent inducement, breach of fiduciary duty, unjust enrichment, fraud, and first-party bad faith. During discovery, JMIC voluntarily produced its entire claim file and, pursuant to an agreed order, provided additional documents, including its claims procedure manuals, its training manuals, and its commission agreement. JMIC also permitted Mrs. Henry to take the deposition of Jim Moran, a JMIC corporate representative.
Mr. Moran’s deposition was not completed on the first day, but the testimony submitted on that day included statements concerning JMIC’s claim files, its handling of Mrs. Henry’s claim, JMIC’s claims handling procedures and business policies, and the interpretation of form documents. During the deposition, Mrs. Henry learned of two other cases in which JMIC had initially disputed coverage but eventually paid claims under similar facts. JMIC permitted Moran to testify about both of those cases.
Mrs. Henry thereafter sent out follow-up document requests concerning the two other similar cases as well as other documents identified during Moran’s deposition. Additionally, she propounded more interrogatories, noticed the continuation of Moran’s deposition, and noticed the depositions of other JMIC employees.
JMIC failed to appear at the scheduled depositions and refused to produce the documents sought in Mrs. Henry’s second request to produce. Instead, JMIC filed a motion for protective order. In its motion, JMIC objected to the requests submitted by Mrs. Henry, arguing for the first time that said discovery related only to her bad faith claim and, as such, the requests were premature. Mrs. Henry responded with a motion to compel discovery.
After conducting a hearing, the trial court granted Mrs. Henry’s motion to compel the depositions, denied JMIC’s motion for protective order, and granted in part Mrs. Henry’s motion to compel responses to her written discovery request. JMIC seeks certiorari review of the trial court’s order, raising three claims of error.
First, JMIC argues that the trial court’s order departs from the essential requirements of law because it improperly compels JMIC to disclose information that is protected by the work product doctrine. However, nothing on the face of the trial court’s order requires JMIC to disclose information that is protected by the work product doctrine. As the trial court explained in its order denying JMIC’s motion for stay:
[T]he Court’s March 9, 2005 Order did not compel JMIC to produce any work product. Nor did the Court rule on any work product issue in that Order. JMIC’s corporate representative testified on September 23, 2004 that he did not know whether the company had knowledge concerning the conversation between the Henrys and the company’s agent at the point of sale of the insurance product at issue in the case. Because the corporate representative did not know, JMIC did not instruct its witness not [to] answer on work product grounds, and there is no motion to compel and no ruling on the point. If, at the continuation of the corporate representative deposition ordered by the Court, the objection is asserted and an appropriate motion is made, then the Court will rule. But that is only hypothetical at this stage. The issue of work product did not otherwise arise in connection with the matters decided in the March 9, 2005 Order.
The trial court’s order makes clear that work product materials were not ordered to be produced and that, if a work product issue arose later, the trial court would address the matter upon appropriate motion.
Next, JMIC argues that the trial court’s order departs from the essential requirements of law because the order improperly compels it to produce information about its claim files, claims handling practices, and business policies before coverage has been established. According to JMIC, Mrs. Henry is not entitled to receive discovery of such matters at this time because her claim of bad faith has not yet accrued. However, Mrs. Henry is not suing only on the theory of bad faith. Her complaint includes four other causes of action and the trial court properly found that the documents sought were within the scope of discovery as to those other claims.
JMIC makes the additional argument that the discovery Mrs. Henry has requested is not relevant with regard to the other four counts in her complaint. However, relevance is not the test for discovery purposes. Rather, the test is whether the discovery is reasonably calculated to lead to admissible evidence. Argus Fire & Cas. Ins. Co. v. Winn, 854 So.2d 829 (Fla. 5th DCA 2003). In addition, lack of relevancy, standing alone, is generally not a sufficient basis for granting certiorari relief. See Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995). See also Colbert v. Rolls, 746 So.2d 1134 (Fla. 5th DCA 1999), rev. dismissed, 751 So.2d 1251 (Fla. 2000)(holding that appellate courts are reluctant to review relevancy issues by certiorari). Furthermore, Moran has already testified extensively at his deposition regarding these topics without objection. As such, JMIC has waived this objection.
Lastly, JMIC argues that the trial court departed from the essential requirements of law by permitting Mrs. Henry to continue the deposition of Jim Moran. According to JMIC, Moran is a “senior management executive,” and therefore, Mrs. Henry is not entitled to take this “apex” deposition until she has exhausted other discovery and can demonstrate that Moran is uniquely able to provide relevant information that cannot be obtained from other sources, citing to Department of Agriculture and Consumer Services v. Broward County, 810 So.2d 1056 (Fla. 1st DCA 2002). We disagree.
Moran is not an “apex” level executive. Rather, he is an operational level vice president who reviews all credit insurance claims in excess of $10,000. He was ultimately responsible for JMIC’s denial of Mrs. Henry’s claim. In addition, Moran was already deposed by Mrs. Henry for one day without this objection being raised, so JMIC has waived its argument that Moran is immune from deposition as a senior management executive.
PETITION DENIED. (PETERSON, J., concurs. GRIFFIN, J., dissents without opinion.)
