15 Fla. L. Weekly Supp. 1106a
Insurance — Personal injury protection — Discovery — Depositions — Where insurer alleges affirmative defenses, medical provider may require corporate representative of insurer that maintains its place of business in Brevard County to travel to Miami-Dade County for deposition — Request to stay case while insurer seeks certiorari review of order denying protective order is denied
OPEN MRI OF MIAMI-DADE, LTD., a/a/o JULNESSE DORVAL, Plaintiff, v. AFFIRMATIVE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-21869SP23, Div. 05. September 17, 2008. Lisa Walsh, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND DENYING STAY
This cause came before this Court on Defendant Affirmative Insurance Company’s (“Affirmative”) Motion for Protective Order. For the following reasons, Affirmative’s motion is denied:
1. This is an action for breach of contract under Florida’s motor vehicle bodily injury insurance or “PIP” statutes.
2. Plaintiff has set the deposition of the corporate representative for Affirmative to take place in Miami-Dade County.
3. Defendant Affirmative complains that because it maintains its place of business in Melbourne, Brevard County, a deposition of its corporate representative must take place in Brevard County.
4. Normally, Defendant is correct that deposition of its corporate representative must take place where the Defendant is located. See Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993) (“A defendant . . . will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief”), citing Kaufman v. Kaufman, 63 So. 2d 196 (Fla. 1952).
5. However, the Plaintiff argues and this Court agrees that where the Defendant has asserted affirmative defenses, a deposition of the Defendant may take place outside of the county where it maintains its offices. In Kaufman, the case relied upon by the Third District in Santelli for the no-travel rule, the Supreme Court of Florida explained that where a defendant pleads affirmative defenses, the rule does not apply:
Ordinarily a defendant should not be required to travel any great distance in order to be examined by the plaintiff for discovery purposes when no affirmative defenses or counter claims are involved.
63 So. 2d 196, 206 (emphasis added).
6. Here , Affirmative Insurance Company has filed three affirmative defenses, raising coverage, standing and accord and satisfaction issues. Accordingly, under Kaufman, Plaintiffs are not restricted to conducting deposition in Brevard County.1
7. In a recent appellate decision involving the identical issue and identical Defendant, the Seventeenth Judicial Circuit rejected Affirmative Insurance Company’s petition for certiorari of a trial court’s denial of a protective order permitting deposition of the Defendant in Broward County. See Affirmative Insurance Company v. Betasha Sawry, 15 Fla. L. Weekly Supp. 795a (Fla. 17th Cir. Ct. 2008). Citing Kaufman, the court held that it was not a departure from the essential requirements of law to require the defendant to travel for deposition where the Defendant asserted an affirmative defense. As in this case, the Defendant Affirmative asserted a coverage defense in Sawry.
8. Accordingly, this Court denies the Defendant’s Motion for Protective Order.
9. The parties inquired whether or not this Court would be inclined to enter a stay of proceedings in this case. This Court will not enter a stay while the Defendant seeks certiorari review of this order for the following reasons.
10. In determining whether to grant, deny or maintain a stay, courts must consider “the likelihood of irreparable harm if the stay is not granted and the likelihood of success on the merits by the entity seeking to maintain the stay.” Mitchell v. State, 911 So. 2d 1211, 1219 (Fla. 2005). Here, the Defendant has established neither factor.
11. First, the Defendant is unlikely to succeed on the merits. Trial courts have “broad discretion” when entering orders allowing discovery. Nestor v. Posner-Gerstenhaber, 857 So. 2d 953, 955 (Fla. 3d DCA 2003). In exercising this discretion, this Court applied the plain language in Kaufman, a decision by the Supreme Court of Florida, which set forth the rule that a defendant will not be required to travel for deposition, unless that defendant pled affirmative defenses. Under the standards set forth in Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000), it is not likely that an appellate court will find that this Court violated clearly established law.
12. Further, the Defendant has not established that it will suffer irreparable harm that would require a stay. At worst, Defendant will have to travel several hours by car from Melbourne to North Miami.2
13. Accordingly, the motion for protective order is denied and the Plaintiff is free to reschedule the deposition until and unless the appellate court grants a stay.
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1Affirmative argues that only if it filed a counterclaim may the Plaintiff schedule a deposition of the corporate representative outside of Brevard County. However, in Kaufman, the Supreme Court of Florida explained that the no-travel rule applies unless the Defendant files affirmative defenses or counterclaims. Relying on Kaufman, this Court rejects Affirmative’s argument.
2It is further unlikely that an appellate court will find the expenditure of funds to travel several hours by car to constitute irreparable harm or “a miscarriage of justice” justifying certiorari relief. Ivey, 774 So. 2d at 682.
