15 Fla. L. Weekly Supp. 218a
Insurance — Personal injury protection — Discovery — Procedure reports — Order compelling production of information regarding charges for certain CPT codes received by insurer during specified dates of service from medical providers in certain zip codes or, in the alternative, “procedure reports” reflecting this information was not departure from essential requirements of law resulting in material injury for which there was no adequate remedy on appeal
PROGRESSIVE CONSUMERS INSURANCE COMPANY, Petitioner, v. FOUR CORNERS CHIROPRACTIC CENTERS, P.A., As assignee of ALBERT JONES, Respondent. 10th Judicial Circuit (Appellate) for Hardee, Highlands, and Polk County. Case No. 2006CA-002237, Section 30. January 11, 2008. Counsel: Valeria Hendricks, Davis & Harmon, P.A., Tampa. Davis S. Dougherty, The Coury Law Firm, P.A., Lake Mary. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
(J. DAVID LANGFORD, C.J.) THIS MATTER came before the Court on Petitioner’s Petition for Writ of Certiorari. Petitioner seeks review of the trial court’s order granting Respondent’s motion to compel discovery. This Court has jurisdiction pursuant to Rule 9.030(c), Florida Rules of Appellate Procedure. The petition for writ of certiorari is denied.I
Four Corners Chiropractic Centers, P.A., as assignee of Albert Jones, a healthcare provider (hereinafter “Respondent”), filed suit against Progressive Consumers Insurance Company (hereinafter “Petitioner”), seeking personal injury protection benefits and alleging Petitioner reduced Respondent’s charges for healthcare services to an amount less than the usual, customary and reasonable amount charged in the geographical region where the services were rendered. The reduction in charges is alleged to be based solely on a computer program owned by a third party, Mitchell Medical. Respondent served requests for production and interrogatories seeking discovery related to data used to adjust the charges for healthcare services.
Interrogatory number 1 of Plaintiff’s Second Interrogatories to Defendant requested that Petitioner provide:
For each of the CPT codes at issue in this case (99203, 99018, 97124, 97018, 99070), please list all charges received for these services by the Defendant for dates of service between June 1, 2003, through June 1, 2004, for medical providers located in zip codes beginning with the first three digits 327** and 347**. Include the provider’s name, date of service, and the amount charged, and the amount allowed by the Defendant. In the alternative to listing all the 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.”
Petitioner objected to interrogatory number 1 as being overbroad, burdensome, irrelevant, not reasonably calculated to lead to discovery of admissible evidence, designed to harass Petitioner, and privileged attorney-client and/or work product.
Plaintiff’s Third Request to Produce to Defendant requested that Petitioner provide the following:
3. All Procedure Reports, as described in the affidavit attached as Exhibit “A,” showing all the charges for the year 2004 for all zip codes beginning with 336**, 327** or 347** for the following CPT codes: 99203; 99018; 97124; 97018; and 99070.
4. Any and all listing or summaries Defendant has in its possession or control or is able to produce from progressive’s computer system showing all charges Progressive received for the year 2004 for all zip codes beginning with 338**, 32327** [sic] or 347** for the following CPT codes: ++203; 99018; 97124; 97018; and 99070.
Petitioner objected to request number 3 as being vague, ambiguous, overbroad, irrelevant, not in Defendant’s possession, and privileged work product. Petitioner objected to request number 4 as being vague, ambiguous, overbroad, privileged work product, and something that does not currently exist.
Respondent’s second and third requests for discovery included an affidavit from Keith Benefiel filed in Physical Medicine Pain Ctr., P.A. v. Progessive Express Ins. Co., Seminole County Case No. 03-SC-3437. In his affidavit, Mr. Benefiel states “ ‘Procedure Reports’ . . . are a compilation of data collected by Progressive exhibiting charges for dates of service. . . for medical providers utilizing a zip code in regions. . . where services were rendered.” Further, “ ‘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.”
On November 18, 2005, Respondent filed Plaintiff’s Motion to Compel Response to Discovery Requests, in which Respondent stated that Petitioner waived any objections by not timely responding and by failing to provide a privilege log with their response. Respondent also stated that there was no factual or legal basis for Petitioner’s objections. Other than argument by counsel and a deposition of Mr. Benefiel taken for a different case, which the parties stipulated to filing and relying on, no evidence or testimony was presented at the hearing on the motion to compel. In his deposition, Mr. Benefiel explained that procedure reports are generated in the course of litigation “[u]pon, usually, a court order, and in some occasions we’ve produced them in discovery requests.” (Petr.’s App. 12 p.16).
On May 11, 2006, the trial court entered an Order Granting Plaintiff’s Motion to Compel. The trial court did not specifically address Petitioner’s objections. Instead, the trial court simply granted the motion to compel and ordered that:
2. For CPT code 99203, 97018, and 97124, the Defendant will list all charges received for these services by the Defendant for dates of service during April and May of 2004 from medical providers located in zip codes beginning with the first three digits 327**, 347**, and 338**. The Defendant will include the provider’s name, the date of service, the amount charged, and the amount allowed by the Defendant.
3. In the alternative to listing all the information in the form of an interrogatory answer, the Defendant may provide procedure reports containing the same information.
II
When reviewing a trial court’s order on discovery, the appellate court must determine whether the “discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). “Generally, a trial court is allowed broad discretion in discovery matters.” National Union Fire Ins. Co. of Pittsburgh PA v. Florida Const., Commerce and Indus. Self Insurers Fund, 720 So.2d 535 (Fla. 2d 1998).III
Petitioner argues that the trial court’s order compelling discovery departs from the essential requirements of the law by compelling Petitioner “to generate a ‘procedure report’ from data it keeps for the purpose of adjusting claims.” (Petr.’s Pet. 7). Petitioner states that procedure reports are composed of information that is part of their claims files, making it privileged from disclosure under the work product privilege. Petitioner’s petition does not assert that the discovery order will cause material injury leaving no adequate remedy on appeal. However, in Petitioner’s reply to Respondent’s response to the Court’s Order to Show Cause, Petitioner argues that compelling disclosure of the procedure reports will cause irreparable injury throughout the proceedings because they are protected by the work product privilege.
Respondent argues that the trial court did not depart from the essential requirements of the law because Petitioner was not ordered to produce privileged materials. Respondent states that the information in the Procedure Reports is not claim specific, does not identify a specific claim, does not reveal claims handling procedures or policies, and is collected and maintained in the ordinary course of business. Therefore, Respondent argues that there is no claims file privilege. Further, Respondent states that Petitioner was given the option of providing the requested discovery in the form of Procedure Reports or in the form of interrogatory answers. Finally, Respondent argues that Petitioner has failed to establish or allege a material injury to Petitioner without adequate remedy on appeal.
Petitioner cites to case law holding that an insurer’s claims file is protected by the work product privilege where coverage under the policy remains an issue. See GEICO General Ins. Co. v. Hoy, 927 So.2d 122 (Fla. 2d DCA 2006); State Farm Fla. Ins. Co. v. Gallmon, 835 So.2d 389 (Fla. 2d DCA 2003); Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250 (Fla. 3d DCA 2002). However, most of the case law cited by Petitioner is distinguishable in that the discovery requests were for the entire claim file specific to the suit for coverage, were for documents contained in the claim file specific to the suit for coverage, or were found irrelevant to the claim. None of the cases pertain to requests for Procedure Reports or for discovery of data related to charges for services and amounts allowed for services in a specific geographical region.
Somewhat analogous to the case at hand is U.S. Fire Ins. Co. v. Clearwater Oaks Bank, 421 So.2d 783 (Fla. 2d DCA 1982), cited by Petitioner. There, the insured requested discovery of their actual claims file in addition to the insurer’s files pertaining to other claims and lawsuits under similar circumstances. The Court found that the insured’s actual claims file was protected by the work product privilege, but that the insured’s entitlement to discovery of files involving other claims and lawsuits depended on “whether the requested discovery appears reasonably calculated to lead to admissible evidence.” Id. at 784.
Accordingly, based on the record before the Court, the Court finds that the trial court’s order compelling discovery does not depart “from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). Thus, the trial court did not err in compelling discovery.
Therefore, it is ORDERED that Petitioner’s Petition for Writ of Certiorari is DENIED.
