13 Fla. L. Weekly Supp. 999a
Insurance — Personal injury protection — Discovery — Depositions — Claims adjuster — Insurer’s policies and procedures — Where deposition transcript reveals that medical provider’s counsel repeatedly questioned claims adjuster about insurer’s general policies and procedures and handling of claims other than claim at issue and that insurer’s counsel objected and instructed witness not to answer such questions, insurer’s motion for protective order is granted, and provider’s motion to compel testimony is denied
SILVER HILLS HEALTH & REHAB, CLINIC, INC., a/s/o SAMUEL THERNELUS, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. CCO 04 15947. May 23, 2006. Antoinette D. Plogstedt, Judge. Counsel: Herbert McMillan, for Plaintiff. Rachel P. Ray, Hengber, Goldstein, and Ray, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORPROTECTIVE ORDER AS TO GRACE ELLIS’ DEPOSITION,AND DENYING PLAINTIFF’S MOTION TO COMPEL TESTIMONY OF GRACE ELLIS AND FOR SANCTIONS
THIS CAUSE having come on to be heard this May 15, 2006, on Defendant’s Motion for Protective Order as to Grace Ellis’ Deposition, and Plaintiff’s Motion to Compel Testimony of Grace Ellis and for Sanctions, having heard argument of counsel, and the Court being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED:
Plaintiff filed the instant first party Personal Injury Protection suit for Breach of Contract. Plaintiff asserts that Defendant failed to pay any of the bills it submitted for services allegedly rendered to Samuel Thernelus. Defendant has filed affirmative defenses asserting among other things, that Plaintiff has not satisfied its burden of proof that the bills and services were reasonable, related and medically necessary; lack of coverage for this person, not listed on the subject policy of insurance, and fraud and misrepresentations in medical records and billing by Plaintiff. Plaintiff requested, and Defendant produced the medical claims adjuster, Grace Ellis, for deposition. Defendant terminated the deposition and filed a Motion for Protective Order to preclude Plaintiff counsel from asking inappropriate, non-discoverable, privileged and harassing questions. Simultaneously, Plaintiff counsel filed a Motion to Compel testimony from Grace Ellis and for Sanctions claiming that defense counsel improperly instructed the witness not to answer questions on the record. Plaintiff’s motion provided examples of the questions asked, to which defense counsel objected and instructed the witness not to answer, and which Plaintiff was seeking to compel through its motion:
Q: Prior to that time before you started to handle PIP exclusively what other types of claims were you handling?
A: I’ve handled liability claims, casualty claims, homeowner’s claims, litigations claims, catastrophe claims.
Q: And what did you have to do when you were handling liability claims.
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Q: Can you tell me, ma’am how or what you had to do to adjust casualty claims?* * *
Q: And what types of catastrophic claims did you handle?* * *
Q: How does Allstate go about determining whether or not a particular bill is reasonable?***
Q: Does Allstate have different policies pertaining to whether a particular bill is reasonable based upon who the insured is?* * *
Q: Allstate wouldn’t look at Mr. Thernelus’ bill and consider it to be reasonable or not reasonable and yet treat another insurance bill any differently would it?* * *
Q: And what I want to know from you is what are some of the things Allstate considers relative to the reasonableness of the charge? What are the factors that they consider?* * *
Q: Are there any tools that are proprietary to Allstate that you use in determining whether or not a particular bill is reasonable?* * *
Q: How does Allstate go about determining whether or not a particular charge is medically necessary?* * *
Q: Does Allstate ever hire experts to examine patients to determine whether or not a particular charge was medically necessary?
Defense counsel, at the hearing, also pointed out several more examples throughout the deposition transcript of Plaintiff’s counsel’s questions directed towards Allstate’s general policies and procedures, and further examples of defense counsel’s objections and requests that the questions be rephrased to request information about the subject claim.
The record evidence provided in the form of the deposition transcript of Grace Ellis established that Plaintiff’s counsel repeatedly questioned the witness about Allstate’s general policies, procedures, guidelines, directives and handling of claims other than the instant claim, and repeatedly questioned the witness about subjects irrelevant to the subject personal injury protection claim. The record evidenced that Defense counsel repeatedly objected to the questions posed and instructed the witness not to answer questions which called for information about Allstate’s general business practices, procedures or policies. Defense counsel offered Plaintiff’s counsel the opportunity to rephrase the question to request the same information as it related to the subject claim at issue; however, Plaintiff’s counsel did not rephrase the question, and rather continued to question the witness about general Allstate policies and procedures.
Florida Rule of Civil Procedure 1.310(c) states: “A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d).” 1.310(d), F.R.C.P. states: “At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent . . . .”
Florida courts have long held that an insurance company’s policies, procedures, manuals, guidelines, etc. are not discoverable during a first party litigation — such as a personal injury protection claim. State Farm v. Valido,20 Fla. Law Weekly D2514e, (Fla. 3rd District 1995); American Reliance Insurance Company v Rosemont Condominium, 21 Fla. Law Weekly D837b, (Fla. 3rd District, 1996); Florida Residential Property and Casualty Joint Underwriters Assoc. v Sanchez,22 Fla. Law Weekly D950c, (Fla. 3rd District 1997); State Farm v Cook, 24 Fla. Law Weekly D2560a, (Fla. 2nd District, 1999). These courts have also supported the Defendant’s proposition that a party cannot obtain through deposition testimony, that information which it is not allowed to obtain through other discovery means. The Third District said it succinctly in Scottsdale Insurance Co. v. Camara De Comercio Latino, 27 Fla. Law Weekly D815a, (Fla. 3rd District, 2002) when it held that the same reasoning and authority that applies to protecting production of the insurance company’s policies and procedures in a first party claim against the insurance company, necessarily applies to the testimony that the insurance representative would be asked to provide at his or her deposition. Id. See also American Reliance Insurance Company v Rosemont Condominium,21 Fla. Law Weekly D837b, (Fla. 3rd district, 1996).
Based upon the above, Defendant’s Motion for Protective Order is hereby Granted. Plaintiff’s Motion to Compel testimony from Grace Ellis is Denied. No sanctions are awarded to either party. Plaintiff shall be permitted to reschedule the deposition of Ms. Ellis, however, Plaintiff’s counsel will refrain from asking the witness any questions pertaining to Allstate’s handling of other claims, Allstate’s policies, procedures or guidelines, Allstate’s handling of bills other than those involved in the subject action. Plaintiff’s counsel shall be allowed to ask the witness questions relevant and pertaining to the subject claim person injury protection claim.
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