13 Fla. L. Weekly Supp. 397b
Insurance — Personal injury protection — Discovery — Interrogatories — Insurer’s objections to interrogatories seeking procedure reports reflecting charges received by insurer for CPT codes at issue for one-year period within certain zip codes are overruled where information sought is probative and relevant or at least crafted to lead to discovery of admissible evidence, untimely objections are deemed waived, and insurer has failed to provide basis for assertions of work product and trade secret privileges or claims that information is proprietary or violative of third party rights
ORLANDO PAIN & MEDICAL REHABILITATION CENTER, MW, LLC., As assignee of Lydia Jackson, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit, of Seminole County. Case No. 05-SC-002889. January 25, 2006. John R. Sloop, Judge. Counsel: Roy J. Smith, IV, Weiss Legal Group, P.A., Maitland, for Plaintiff. David Fabrikant, St. Petersburg, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO COMPEL RESPONSES TO SECOND INTERROGATORIES
This cause came before the Court on the Plaintiff’s Motion to Compel Responses to Second Interrogatories. The Court has considered the motion, being fully advised in its premises, and after hearing oral argument of the parties, the Court finds as follows:
1. Ms. Lydia Jackson is a Personal Injury Protection (P.I.P.) insured of Defendant with regards to an automobile accident which occurred on or about May 9, 2005.
2. On August 11, 2005, Orlando Pain & Medical Rehabilitation Center, MW, LLC, as the assignee of Lydia Jackson, filed a lawsuit to recover payments for services and supplies provided to Ms. Jackson.
3. On September 20, 2005, Plaintiff sent its “Second Interrogatories to Defendant” which consisted of one interrogatory as follows:
For each of the CPT codes at issue in this case (97110, 97014, G0283, A4556, E0230, and E0943), please list all charges received for these services or products by Defendant for dates of service between September 1, 2004 through September 1, 2005, for medical providers utilizing a zip code in regions 32800 — 32899. Include the provider’s name, the date of service, and the amount charged. In the alternative to listing all of this information in the form of an answer to interrogatories, please provide the “procedure reports” reflecting the above requested information. The term “procedure reports” as utilized in this interrogatory is to have the same meaning as the term “procedure reports” in the attached affidavit of Keith Benefiel attached as exhibit “A.”
4. The August 17, 2005 affidavit of Keith Benefiel, which was attached to this interrogatory, filed with this Court, and previously filed by Defendant in another case before this Court, stated as follows:
COMES NOW, KEITH V. BENEFIEL, and after having been duly sworn states as follows:
1. The “Procedure Reports” provided in response to Plaintiff’s discovery request are a compilation of data collected by Progressive exhibiting charges for dates of service between January 1, 2003 to December 31, 2003, for medical providers utilizing a zip code in regions 32700 — 32799 where services were rendered.
2. The “Procedure Reports” contain data transmitted by a person with knowledge as the information is derived from Explanation of Benefits forms submitted to Progressive for payment.
3. The “Procedure Reports” are created from data maintained in the course of regularly conducted business activity and it is the practice of Progressive to maintain this data.
4. I am over eighteen years of age and the information contained in this Affidavit is based on my personal knowledge.
(emphasis added).
5. Plaintiff’s Second interrogatory was sent via facsimile and U.S. Mail and therefore Defendant’s response was due on or before October 20, 2005.
6. On October 27, 2005, Plaintiff filed “Plaintiff’s Motion to [Compel] Responses to Second Interrogatories.
7. On October 27, 2005, Defendant untimely filed “Defendant’s Objections to Plaintiff’s Interrogatories” which read as follows:
Objection, irrelevant and immaterial, overly broad and unduly burdensome, work product, trade secret, proprietary in nature, violative of third party rights, and not reasonably calculated to lead to the discovery of admissible evidence and as such is outside the scope of discovery as set forth in Fla.R.Civ.P. 1.280. The Plaintiff has the burden of proving its charges were reasonable. Derius v. Allstate Indem. Co., 723 So.2d 271-273 (Fla. 4th DCA) rev. denied, 719 So.2d 892 (Fla. 1998). See also State Farm Mutual Automobile Insurance Company v. Sestile, 821 So.2d 1244 (Fla. 2nd DCA 2002); Auto Owners Ins. Co. v. Marzulli, 788 So.2d 1031, 1034 (Fla. 2d DCA 2001). This burden of proof does not shift to the Defendant by virtue of this being a PIP suit. Not withstanding Defendant’s objections, the reports in question are not maintained in the general course of business, and the raw data in not in the care custody or control of Defendant.
8. At the hearing on Plaintiff’s Motion to Compel Responses to Second Interrogatories, counsel for Defendant stated that the data for the “Procedure Reports” are indeed maintained by Progressive, which is contradictory to the response to second interrogatories provided by Defendant.
IT IS HEREBY ORDERED AND ADJUDGED:
A. Plaintiff’s Motion to Compel Responses to Second Interrogatories is hereby GRANTED as follows.
i. Defendant’s objections to Defendant’s second interrogatories are overruled. The information sought by Plaintiff is indeed probative and relevant, and at the very least is crafted to lead to the discovery of admissible evidence. Further the objections were untimely and are deemed waived.
a. Defendant failed to provide a basis for its assertion of work product privilege and therefore that privilege is overruled.
b. Defendant failed to provide any basis for its assertion of trade secret privilege and therefore that assertion of privilege is overruled.
c. Defendant failed to provide any basis for its assertion that the information sought is proprietary. Therefore, the assertion of that privilege is overruled.
d. Defendant failed to provide any basis for its assertion that the information sought was violative of third party rights. Therefore, that assertion is overruled.
ii. Defendant shall provide complete responses to Plaintiff’s Second Interrogatories within 20 days of the date of this order.
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