15 Fla. L. Weekly Supp. 795a
Insurance — Personal injury protection — Discovery — Depositions — Location — Certiorari challenge to order denying motion for protective order seeking to move location for deposition of insurer’s litigation adjuster from Broward County to Brevard County or Addison, Texas — Rule that defendant should not be required to travel great distance for discovery deposition is not applicable where insurer has asserted affirmative defense — Standing — Assignment — Claim that insured who assigned benefits to medical provider lacks standing is not properly before appellate court where claim was never brought before trial court or raised as affirmative defense
AFFIRMATIVE INSURANCE COMPANY, Petitioner, v. BETASHA SAWRY, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-5423 (08). L.C. Case No. 05-4341CONO 70. May 22, 2008. Counsel: Alica Lyons Laufer, Rubinton & Laufer, LLC, Hollywood, for Petitioner. Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs; and Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Respondent.
ORDER ON PETITION FOR WRIT OF PROHIBITION
(RONALD J. ROTHSCHILD, J.) THIS CAUSE comes before the Court on an “Emergency Petition for Writ of Certiorari” filed by Petitioner, Affirmative Insurance Company, February 6, 2008. Having reviewed the file, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:
On December 12, 2007, the Respondent served a notice of taking the deposition of Petitioner’s litigation adjuster. The deposition was scheduled to take place on January 8, 2008, in Broward County, Florida. On January 4, 2008, Petitioner filed “Defendant’s Emergency Motion for Protective Order.” The Petitioner contended that the appropriate county for the deposition is Brevard County and/or Addison, Texas. Petitioner states Brevard County is the proper location to depose its employees in the claims department, and Addison, Texas is the proper location to depose its employees in the underwriting department. The trial court denied the Emergency Motion and required that the litigation adjuster appear for deposition in Broward County. On January 8, 2008, Respondent rescheduled the Broward deposition for February 6, 2008. On February 6, Petitioner filed an Emergency Petition for Writ of Certiorari. When a petition for writ of certiorari is before the court, it must first be reviewed to determine if the petitioner has made a showing that if certiorari is not granted, material injury resulting in irreparable harm will result. Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996). For a district court to reverse a trial court order by writ of certiorari, the order must also be a violation of clearly established law that, if upheld, would result in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000). Trial court orders that allow parties to take discovery are given broad discretion. Baker v. Eckerd Corp., 697 So.2d 970, 971 (Fla. 2nd DCA 1997). “Only when an order allowing discovery constitutes an abuse of discretion which would cause irreparable damage should the ruling be set aside.” Id.
In the instant case, the Petitioner claims that requiring its employees to travel to Broward County constitutes physical impossibility, and shoulders it with unfair travel expenses and inconvenience. While it is true that “ordinarily, a defendant should not be required to travel any great distance in order to be examined by plaintiff for discovery purposes,” this is not the case when affirmative defenses or counter-claims are asserted. Kaufman v. Kaufman, 63 So.2d 196, 206 (Fla. 1952). In the instant case, Petitioner asserted an affirmative defense. Namely, that the subject insurance policy was not in full force and effect on the date of the alleged accident asserted in Plaintiff’s complaint. Thus, while a typical defendant may not be subject to the inconvenience and costs that the Petitioner here is alleging, because the Plaintiff asserted an affirmative defense, the trial court did not depart from the essential requirements of the law when it denied Petitioner’s “Emergency Motion for Protective Order.”
Additionally, Petitioner requests that the Court dismiss Respondent’s claim for lack of subject matter jurisdiction, alleging that she lacks standing to bring a claim for benefits she assigned to her medical provider. The Court agrees with the Respondent that this claim is not properly before this Court as it was never brought before the lower court or raised as an affirmative defense. Moss v. Moss, 939 So.2d 159 (Fla. 2nd DCA 2006) (claim not considered in trial court will not be considered on appeal). It is “elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him.” Margolis v. Klein, 184 So.2d 205, 206 (Fla. 3rd DCA 1966). Therefore this matter is not properly before this court.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the “Emergency Petition for Writ of Certiorari” is DENIED.
