11 Fla. L. Weekly Supp. 424a
Insurance — Personal injury protection — Discovery — Res judicata — Trial court’s order requiring insurer to produce for in camera inspection mailing list containing 274,000 entries which was utilized in class action suit did not conform to essential requirements of law, may irreparably cause material injury to insurer throughout subsequent proceedings, and is quashed based on finding that underlying claim is barred by res judicata — Instant claim was barred by class action settlement, which contained a no opt-out provision — Doctrine of res judicata applies even if plaintiff did not, as she contended, receive notice
GEICO GENERAL INSURANCE COMPANY, Petitioner, vs. ANNE CONKLIN, Respondent. Circuit Court, 18th Judicial Circuit (Appellate) in and for Brevard County. Case No. 05-2003-AP-38027-XXXX-XX. July 21, 2003. Motion for Rehearing. August 27, 2003. Petition for Writ of Certiorari. December 18, 2003. Counsel: Frank A. Zacherl and Douglas G. Brehm, Shutts & Bowen, LLP, Miami, for Petitioner. John Fielding, Joseph Giglia, and Jack Platt, Platt, Jacobus, Fielding, et al., Melbourne, for Respondent.
(HOLCOMB, CHARLES M., Judge.) Conklin filed suit against Geico for damages for overdue no-fault benefits. As part of a discovery request by Conklin, Geico was requested to produce the mailing list which was utilized in the case of Nunez, et al. v. Geico General Insurance Co., et al.1 Geico objected saying the request was unduly burdensome, proprietary, vague, ambiguous, overbroad, and irrelevant. Geico also alleged the mailing list contained confidential information. Eventually, as is relevant to this Petition, Geico also argued the lawsuit was barred by res judicata, based upon the Nunez case. In response to Conklin’s second request to produce, Geico filed an affidavit claiming it had produced a mailing list containing 274,000 entries which was utilized in the Nunez case. The affidavit also stated that Conklin and her attorney were on that list. Geico also included an affidavit of an employee of the firm which was hired by Geico to produce and mail out the notice of class action. Following an Order of the trial court in December of 2002 requiring Geico to provide the mailing list to Conklin, Geico produced and provided a redacted list, showing the names of Petitioner and her attorney. Conklin’s attorney did not find the redacted list sufficient, and demanded Geico produce the entire list. Conklin’s attorney complains that the Nunez action violates State PIP law and Conklin’s rights in the case below. The complaint could be classified as a collateral attack of the circuit court judgment entered in Nunez.
Geico then filed a motion for clarification and/or reconsideration of the trial court’s order on this issue. The trial court then issued an Order requiring Geico to produce the entire mailing list for an in camera inspection. Geico has filed the instant Petition for Writ of Certiorari to this Court for the review of the decision of the trial court ordering the production of the entire mailing list.2
Appellate review of interlocutory orders by certiorari is a remedy available in a restricted category of cases. Certiorari will be granted only in cases in which it clearly appears that there is no full, adequate and complete remedy available to the petitioner by appeal after final judgment, as where (a) the trial court has acted without or in excess of its jurisdiction, or (b) its order does not conform to the essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate
Gadsden County Times Inc. v. Horne, 382 So.2d 347, 348 (Fla. 1st 1980). We find the decision of the trial court to be contrary to the essential requirements of law.
The Court finds that the propriety of the trial court’s Order can be decided entirely on whether or not the action filed by Conklin is barred by res judicata. “The elements of res judicata are identity of the thing sued for, identity of the cause of action, identity of the persons and parties to the action, and identity of quality for or against whom the claim is made.” Personnel One, Inc. v. John Sommerer & Co., P.A., 564 So.2d 1217, 1218 (Fla. 3d DCA 1990). Each of those elements are present in the instant case. It appears that Conklin’s attorney was aware of the Nunez case, and voiced an objection to the class action settlement on behalf of another client. If, as alleged by Conklin, she did not receive notice, the doctrine of res judicata still applies. See, Silber v. Mabon, 18 F. 3d 1449 (9th Cir. 1994); Peters v. National R.R. Passenger Corp., 966 F. 2d 1486 (D.C. Cir. 1992); Fontana v. Elrod, 826 F. 2d 729 (7th Cir. 1987); Grunin v. International House of Pancakes, 513F. 2d 114 (8th Cir. Ct. 1975); In re Cherry, 164 F.R.D.630 (E.D. Mich. 1996). Disclosure would also violate the confidentiality agreement in the Second Amended Settlement Agreement as ordered by the Honorable Gerald D. Hubbart, Circuit Judge, in Nunez. Disclosure would possibly violate the Gramm-Leach-Bliley Act, Title V, 15 U.S.C. § 6801, et seq. The disclosure of the Nunez class action mailing list is not required, as it is not relevant and cannot lead to discovery of any admissible evidence. For these reasons, the order of the trial court does not conform to the essential requirements of law and may irreparably cause material injury to Geico throughout subsequent proceedings. The Petition is therefore GRANTED, and the order of the trial court dated February 17, 2003 is hereby quashed. (Judges Reinman, M. and Griesbaum, J., concur.)
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1See, Nunez, et al. v. Geico General Insurance Co., et al., Case Number 98-6342-CA-22 (Fla. 11th Cir. Ct. Dec. 12, 2000) (Class action settlement ending all litigation against Geico in the State of Florida, that alleged or involved violations of the PIP statute and/or the policy of insurance in the payment of medical benefits and/or expenses pursuant to F.S. § 627.736(1)(a). Importantly to this case, the settlement in the Nunez case included a well reasoned no opt out provision.)
2This Court has jurisdiction pursuant to Fla. R. App. P. 9.030(c)(2).
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[Editor’s note: Opinion on Motion for Rehearing and Clarification.]
(PER CURIAM) This cause came before the Court on Respondent’s Motion for Rehearing and Clarification, filed August 4, 2003. Respondent’s Motion for Rehearing is DENIED, as reference to the doctrine of res judicata was argued and referenced in the Petition. With regard to Respondent’s Motion for Clarification, and the request for clarification on the issues of violating the confidentiality agreement and violating federal law, these issues were mentioned in passing and are irrelevant due to the fact that the basis of the decision was the doctrine of res judicata. As such, there is no need for the Court to clarify the decision on those issues. (Judges Holcomb, C., Reinman, M., and Griesbaum, J., concur.)
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ANNE CONKLIN, Petitioner, v. GEICO GENERAL INSURANCE COMPANY, Respondent. 5th District. Case No. 5D03-2733. December 28, 2003.
BY ORDER OF THE COURT:
ORDERED that the PETITION FOR WRIT OF CERTIORARI, filed August 20, 2003, is denied.
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