15 Fla. L. Weekly Supp. 1057a
Insurance — Personal injury protection — Discovery — Appeals — No merit to claim that petition for writ of certiorari seeking review of order denying motion to strike certain discovery documents is untimely because order challenged is tantamount to rehearing of an earlier non-final order — However, petitioner/insurer has not demonstrated that it will be irreparably harmed by disclosure of information, particularly since insurer admits that information would be discoverable in a deposition — Certiorari denied
ASSURANCE AMERICA INSURANCE CO., Petitioner, vs. AFO IMAGING, INC. a/a/o Brittany Bogue, Respondent. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 08-3362, Division K. L.C. Case No. 07-11647. July 28, 2008. Counsel: Melissa McCullough, Vernis & Bowling of Central Florida, P.A., Deland, for Petitioner. David Caldevilla, de la Parte & Gilbert, P.A., Tampa; and Christopher P. Calkin, Co-Counsel, Tampa, for Respondent.
ORDER DENYING WRIT OF CERTIORARI
(WILLIAM P. LEVENS, J.) This matter is before the Circuit Court on ASSURANCE AMERICA INSURANCE COMPANY’S (the petitioner) Petition for Writ of Certiorari filed on February 11, 2008. The petitioner seeks review of the trial court’s nonfinal order rendered January 14, 2008, denying its motion to strike certain discovery documents. Because the petition does not make the required showing for certiorari relief, this court must deny the petition.
The standard of review when reviewing a petition for common law certiorari is that the trial court departed from the essential requirements of law which led or will lead to irreparable harm that cannot be corrected on plenary appeal. State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633 (Fla. 2d DCA 2008). The petition must also be timely. Florida Rule of Appellate Procedure 9.100(c)(1).
AFO IMAGING, INC., (the respondent) contends that the petition is untimely as to the request for production and for answers to interrogatories because the petitioner objected to certain requests after being ordered to respond. The respondent argues that the January 14, 2008 order was tantamount to a rehearing of the August 29, 2007 order as to those matters1, which, because the alleged rehearing was of a nonfinal order, did not toll the time to file a petition. Richardson v. Watson, 611 So.2d 1254 (Fla. 2d DCA 1992) ([u]nlike authorized and timely motion directed to final order, motions for reconsideration or rehearing of nonfinal orders do not toll time for filing notice of appeal or petition for writ of certiorari). This is a correct statement of the law, but the appendix does not clearly support the contention that the order addressed a motion for rehearing or anything posing as one. The August 29, 2007 order compelling discovery required the petitioner to respond to the respondent’s interrogatories and Request to Produce which the respondent had served on petitioner May 3, 2007. The January 14, 2008 order addressed, among other things, a motion for sanctions related to objections to the discovery that the August 29, 2007 order compelled. It is these objections that the respondent characterizes as “tantamount to an unauthorized motion for rehearing.” But the appendix does not reflect whether the trial court addressed any of these substantive objections at an earlier time, and, indeed, the transcript indicates that the trial court directed the respondent to answer without expressly prohibiting the raising of objections to any of the requests for information. Thus, it does not appear that the petition is untimely.
Notwithstanding the foregoing, the petition is not susceptible to review. Petitioner has failed to demonstrate that it is entitled to the writ. Not every erroneous discovery order creates certiorari jurisdiction. Allstate Insurance Company v. Langston, 655 So.2d 91 (Fla. 1995). This court cannot grant the writ unless the trial court departed from the essential requirements of law and the disclosure will reasonably cause material and irreparable injury. Wal-Mart Stores, Inc. v. Cumming, 736 So.2d 1248 (Fla. 4th DCA 1999); City of Jacksonville v. Rodriguez, 851 So. 2d 280, 281 (Fla. 1st DCA 2003). The petitioner has not, despite its conclusory statement to the contrary, demonstrated that it will be irreparably harmed by the disclosure, particularly given the fact that the petitioner has admitted that the information would be discoverable in a deposition. This court is, therefore, constrained to deny the writ. It is therefore
ORDERED that the writ is DENIED.
__________________
1The order also relates to a motion to strike second set of supplemental request for admissions and also moved for a protective order as to the second set of supplemental request for admissions. The timeliness of that portion of the order is not at issue.
