16 Fla. L. Weekly Supp. 911a
Online Reference: FLWSUPP 1610ROSA
Insurance — Personal injury protection — Discovery — Billing statements — Appeals — Certiorari — Where medical provider did not claim that requested documents were privileged or confidential, but merely that discovery was overbroad, provider has not established departure from essential requirements of law or shown how production would cause irreparable harm that could not be remedied on appeal — Petition denied
FLORIDA CENTER FOR ORTHOPAEDICS a/a/o MYRIAM ROSADO, Petitioner, v. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Respondent. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 08-CA-5829-O. Writ No. 08-21. July 6, 2009. Petition for Writ of Certiorari from the County Court for Orange County, Nancy L. Clark, Judge. Counsel: Peter J. Zinaich, for Petitioner. Walter A. Ketchum, Jr. and John Crotty, For Respondent.
(Before KIRKWOOD, THORPE, and GRINCEWICZ, JJ.)
FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) Petitioner, Florida Center for Orthopaedics (FCO), as assignee of Myriam Rosado (Rosado), seeks review of the lower court’s order dated February 14, 2008, granting Respondent’s, Ocean Harbor Casualty Insurance Company (Ocean Harbor), motion to compel production of documents and denying Petitioner’s motion for protective order. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(2) and (3). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
Rosado was involved in an automobile accident on September 29, 2001. Prior to the accident, Ocean Harbor issued an insurance policy which provided personal injury protection (PIP) coverage at the time of the accident to Rosado. As a result of the injuries Rosado sustained from the accident, she sought and received medical, diagnostic, rehabilitative and/or remedial medical care and treatment from FCO. Upon receiving treatment from FCO, Rosado assigned her right to benefits under the insurance policy to FCO. On or about February 15, 2002, FCO submitted a bill for services to Ocean Harbor in the amount of $206.00. Ocean Harbor sent a letter to Rosado on February 21, 2002, stating that it was disclaiming coverage due to a lack of cooperation in the investigation.
FCO filed an action for damages against Ocean Harbor seeking PIP benefits on behalf of Rosado for injuries and losses resulting from the automobile accident. In response to FCO’s complaint, Ocean Harbor raised two affirmative defenses: (1) failure of the insured to appear for an examination under oath in breach of the policy and (2) lack of a valid assignment of benefits from the insured to FCO.
The parties appeared before the trial court on competing motions for summary judgment on June 27, 2007. The trial court granted FCO’s motion for partial summary judgment holding that Rosado did not breach the insurance contract by unreasonably refusing to appear for an examination under oath. The issue of a valid assignment of benefits, Ocean Harbor’s other affirmative defense, was previously resolved by production of the assignment. Following the trial court’s entry of partial summary judgment, Ocean Harbor filed a request to produce seeking the complete billing for FCO reflecting all charges and payments for Rosado from October 2001 to the present.
FCO filed an objection to Ocean Harbor’s request to produce and a motion for protective order arguing that the partial summary judgment in FCO’s favor effectively resolved the case because it was the only remaining issue. FCO further argued that Ocean Harbor’s request for additional billing statements is not relevant and will not lead to discovery of admissible evidence. Ocean Harbor then filed a motion to compel production of documents asserting that the requested billing statement is clearly relevant and discoverable as it relates to FCO’s pending claim regarding its bill for treatment rendered to Rosado. At the hearing on the motions, Ocean Harbor argued that although the issues of assignment and failure to cooperate with the investigation were resolved, FCO still had to prove its case because not all of the allegations in the complaint were admitted by Ocean Harbor. Alternatively, FCO argued that the only issues subject to the ongoing litigation were the issues that had been resolved; therefore, Ocean Harbor must demonstrate that the requested documents are relevant. On or about March 17, 2008, the trial court entered an order compelling FCO to produce the requested documents and denying FCO’s motion for protective order. Petitioner subsequently sought certiorari review with this Court.
In reviewing a nonfinal order, for which no appeal is provided by statute, this Court’s review by certiorari is limited only to whether the order departs from the essential requirements of law and whether it causes material injury to petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987). This principle remains the appropriate standard in considering the grant of certiorari relief in pretrial discovery. Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999).
“Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence.” Residence Inn by Marriott v. Cecile Resort Ltd., 822 So. 2d 548, 549 (Fla. 5th DCA 2002). Furthermore, it is axiomatic that information sought in discovery must relate to the issues involved in the litigation, as framed in all pleadings. Krypton Broadcasting of Jacksonville, Inc. v. MGM-Pathe Communications Co., 629 So. 2d 852, 854 (Fla. 1st DCA 1993).
The threshold for certiorari review when a claim of privilege is not asserted is that a petitioner must affirmatively establish from the record that the disclosure of those alleged irrelevant documents would “cause material injury of an irreparable nature.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). Ocean Harbor argues that FCO has failed to meet this burden and thus the order compelling production should stand. Ocean Harbor further cites to Megaflight, Inc. v. Lamb, 749 So. 2d 594, 595 (Fla. 5th DCA 2000) for the proposition that “erroneous Orders that require overbroad discovery of non-privileged documents should be subjected to certiorari review more cautiously than erroneous Orders requiring discovery of confidential or privileged matters.”
FCO does not raise any argument to the effect that the requested documents are privileged or confidential, or would otherwise cause material injury. Rather, FCO’s only argument is that this Court should curtail the trial court’s discovery order because Ocean Harbor cannot show how the records of payments for subsequent treatment is admissible or would lead to the discovery of admissible information. See Policastro v. Stelk, 780 So. 2d 989, 900 (Fla. 5th DCA 2001) (generally certiorari relief will not be granted unless petitioner can establish material injury; however, DCA may curtail order where discovery is irrelevant). FCO contends that while case law supports the position that discovery of irrelevant materials does not necessarily cause irreparable harm; it also provides that a litigant is not entitled to carte blanche irrelevant discovery. Allstate, 655 So. 2d at 95.
As previously stated, this Court’s review is limited to whether the trial court’s order departs from the essential requirements of law and whether the order causes material injury to the petitioner. Martin-Johnson, 509 So. 2d at 1099. A departure from the essential requirements of law is more than “a simple legal error” but requires that there be “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000) (quoting Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983)). While this Court agrees with the proposition that a litigant should not be entitled to carte blanche irrelevant discovery, we also agree with the proposition that overbroad discovery orders should be subjected to certiorari review more cautiously than erroneous orders requiring discovery of confidential or privileged matters. Allstate, 655 So.2d at 95; Megaflight, 749 So. 2d at 595.
Based on the forgoing, this Court finds that the trial court’s order compelling production of the billing statements should stand because FCO neither established a departure from the essential requirements of the law nor showed how the production of the documents would cause irreparable harm that could not be remedied on appeal. Accordingly, it is hereby ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED and Petitioner’s Motion for Attorney’s Fees and Costs is DENIED.
