15 Fla. L. Weekly Supp. 1056a
Insurance — Personal injury protection — Discovery — Depositions — County court did not depart from essential requirements of law by compelling defendant’s claims adjuster, who resided in Hillsborough County, to attend deposition in Miami-Dade County — Because insurer alleged in its answer affirmative defenses that medical services were not reasonable, related, or necessary and that insured made material misrepresentations on insurance application, plaintiff was permitted to depose adjuster in Miami-Dade County
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. DEL GROSSO CHIROPRACTIC, P.A., a/a/o ODILES PIERRE, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-401 AP. L.C. Case No. 07-21609 SP 23. September 15, 2008.
ORDER DENYING PETITIONER’S WRIT OF CERTIORARI
This matter came before this Circuit Court’s Appellate Division as a common law Certiorari Petition from a county court non-final discovery order. This Court having reviewed the Petition, the Appendix, applicable case law, and the Florida Rules of Civil Procedure finds and rules as follows:
STATEMENT OF FACTS
1. United Automobile Insurance Company (“United Auto”) issued an automotive insurance policy to Mr. Odiles Pierre, the insured. The insured was involved in an automobile accident around May 8, 2003 and suffered injury.
2. The insured sought medical care at Del Grosso Chiropractic, P.A. (“Del Grosso”). He assigned his personal injury protection (PIP) benefits to Del Grosso.
3. Del Grosso alleges that the insured timely submitted his medical bills to United Auto for payment. United Auto refused to pay Del Grosso for its medical care. Del Grosso sent United Auto a pre-suit demand letter and subsequently filed a two-count Complaint against United Auto in the county court. United Auto filed an Answer with affirmative defenses.
4. Del Grosso sought to depose United Auto’s pre-litigation insurance adjustor in Miami-Dade County. United Auto conveyed that the insurance adjustor no longer resided in Dade County, Florida but now lives in Tampa, Florida. Del Grosso filed a motion to compel. The county court ordered the parties to conduct the deposition in Dade County, Florida.Del Grosso’s Deposition
5. Florida grants certiorari relief upon a petitioner’s demonstration that a lower tribunal’s “order does not conform to the essential requirements of law and may cause material injuries in subsequent proceedings for which remedy by appeal will be inadequate.” Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Authority, 593 So. 2d 1219, 1221 (Fla. 1st DCA 1992). This Court finds that because the county court’s non-final discovery order influences Del Grosso’s ability to obtain discovery necessary to avoid summary judgment, bring summary judgment, or prepare for trial, irreparable material injury may occur prior to a plenary appeal.
6. Legal questions require de novo review. Southern Baptist Hospital of Florida, Inc. v. Welker, 908 So. 2d 317, 319 (Fla. 2005).
7. United Auto asserts that the county court erred by ordering the insurance adjustor to appear for the deposition in Dade County even though Del Grosso did not subpoena this particular adjustor, who lives in Hillsborough County. This Court disagrees with United Auto’s argument.
8. Florida permits litigants to name a corporation as a deponent. Fla. R. Civ. P. 1.310(b)(6). The deponent-corporation may designate “persons . . . to testify on its behalf and may state the matters on which each person designated will testify.” Id. Del Grosso sought to depose the pre-litigation adjustor with information regarding the insured’s claim. United Auto selected this particular adjustor, who resides in Hillsborough County, Florida, to attend Del Grosso’s deposition. See Chiquita International Limited v. Fresh Del Monte Produce, N.V., 705 So. 2d 112, 113 (Fla. 3d DCA 1998) (stating that under “this rule [Rule 1.310(b)(6)], it is the defendant corporation which designates the representative employee”).
9. The Third District Court of Appeal stated that 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.” Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993) (citing Kaufman v. Kaufman, 63 So. 2d 196 (Fla. 1952)).1
10. In its Answer, United Auto sought affirmative relief. Specifically, United Auto alleged that the medical services were not “reasonable, related or necessary, pursuant to the independent medical examination.” United Auto also alleged that the insured “submitted material misrepresentations on his application for insurance.”
11. Because United Auto alleges affirmative defenses, Del Grosso may depose the adjustor within Miami-Dade County.
This Court DENIES United Automobile Insurance Company’s Petition for a Writ of Certiorari. The county court’s order REMAINS IN FORCE. (MARIA ESPINOSA-DENNIS and VICTORIA PLATZER, JJ. DAVID C. MILLER, J., dissents without opinion.)
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1See United Teachers Associates Ins. Co. v. Vanwinckle, 657 So. 2d 1232, 1232-1233 (Fla. 3d DCA 1995) (stating that “the deposition of a non-resident officer of a non-resident corporate defendant not seeking affirmative relief is to be taken at deponent’s place of residence and the trial court should not require that party to advance travel costs to counsel in connection therewith”); Patterson v. Venne, 594 So. 2d 331, 332 (Fla. 3d DCA 1992) (stating that Patterson, the impleader-defendant, “cannot be compelled to appear personally in Dade County” where the circuit court issued the order to show cause, the order mandated the impleader-defendant’s “personal appearance in Dade County,” and the impleader-defendant “is not seeking affirmative relief”).
