16 Fla. L. Weekly Supp. 814a

Online Reference: FLWSUPP 169CHAVE

Insurance — Personal injury protection — Discovery — Medical records of nonparties — Appeals — Certiorari — Order to produce independent medical examination and peer review reports of nonparties meets threshold jurisdictional requirement for writ of certiorari where disclosure of reports will cause irreparable harm that cannot be corrected on appeal — Insurer has standing to challenge subpoena served on its non-party expert witness — Motion for appellate attorney’s fees that fails to identify source of entitlement to fee award is denied — Reply to response to motion to dismiss petition for writ of certiorari is unauthorized pleading — Order to show cause issued

UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. ADVANCE HEALTH SERVICES, III, INC., a/a/o Angela Chavez, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-141 AP. L.C. Case No. 07-22665 SP 25 04. July 22, 2009. On certiorari review from the County Court of Miami-Dade County, Hon. Nuria Saenz. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, Miami, for Petitioner. George A. David, George A. David, P.A., for Respondent.

(Before FRIEDMAN, MUIR, and BAILEY, JJ.)

(PER CURIAM.) This opinion resolves appellate motions prior to Advance Health Services, III, Inc. (“medical provider”) submitting its response to a show cause order; thus, we briefly recite the facts.

Angela Chavez suffered bodily injuries in an automotive accident. Her medical provider filed a complaint against United Automobile Insurance Company (“insurer”). The medical provider issued a subpoena duces tecum, without deposition, upon the records custodian for the insurer’s expert witness. The subpoena duces tecum requested “any and all medical reports of any kind performed by you on behalf of any insurance company, third party vendor or law firm within the past three years.” The insurer filed a notice of objection pursuant to Florida Rule of Civil Procedure 1.351(b). The insurer seeks certiorari review for the county court’s non-final order, which requires the insurer’s “medical expert to produce all IME and Peer Review reports prepared by the expert 6 months before those for the instant case.” The medical provider filed a motion to dismiss the insurer’s certiorari petition. The insurer filed a response to the motion to dismiss. The medical provider allegedly served a reply to the insurer’s response to the motion to dismiss.¹ The insurer filed a motion to strike the reply.

In its motion to dismiss the certiorari petition, the medical provider asserts that the Court lacks jurisdiction to entertain the insurer’s common law certiorari petition because the insurer failed to demonstrate irreparable harm by not presenting an affidavit or other evidence to support its assertion that the medical provider’s discovery request is overly burdensome and violates patient privacy. The insurer opposes and asserts that the irreparable harm occurs where “the trial court’s order implicates the privacy rights of non-parties since the violation of the right to privacy cannot be adequately cured after the fact.” We agree with the insurer’s assertion that it will suffer an irreparable harm where non-party medical records will become disclosed during discovery proceedings. Graham v. Dacheikh, 991 So. 2d 932, 933 (Fla. 2d DCA 2008).

Florida’s appellate courts issue the writ of certiorari “for those situations where the order results in a material injury which cannot be corrected on appeal and departs from the essential requirements of the law.” Sardinas v. Lagares, 805 So. 2d 1024, 1025 (Fla. 3d DCA 2001) (emphasis added). Revealing the non-party IME patients’ information will present an injury for which post-judgment appeal can not provide relief. We find that the insurer meets the threshold jurisdictional requirement for the extraordinary writ of certiorari. The insurer also presents a preliminary basis for relief, Fla. R. App. P. 9.100(h), by arguing that the non-final order violates the law. Therefore, we issue the order to show cause upon the medical provider by separate order.

In the motion to dismiss, the medical provider also argues that the insurer, a party, lacks standing to file this common law certiorari petition on its non-party expert witness’ behalf because the expert witness is a different entity than the insurer. We disagree and conclude that the party insurer has standing to challenge the subpoena served upon the non-party expert witness. Sunrise Shopping Center, Inc. v. Allied Stores, Corp., 270 So. 2d 32, 33-34 (Fla. 4th DCA 1972).

In the motion to dismiss, the medical provider requests that we find that it “is entitled to attorney’s fees and costs expended in this appeal.” A motion for appellate attorney’s fees“shall state the grounds on which recovery is sought.”Fla. R. App. P. 9.400(b) (emphasis added). “The ‘grounds on which’ an award is sought requires a party to identify a source of entitlement to an award of fees.” White v. White, 3 So. 3d 400, 403 (Fla. 2d DCA 2009) (emphasis added). Failing to state the grounds upon which the party seeks appellate attorney’s fees requires denying the motion. White, 3 So. 3d at 403; Dooley v. Culver, 370 So. 2d 1154, 1155 (Fla. 4th DCA 1978). The request for appellate attorney’s fees, within the motion to dismiss, did not reference any statute or contract entitling the medical provider to appellate attorney’s fees. Therefore, we deny the medical provider’s request for appellate attorney’s fees in its motion to dismiss.²

The insurer filed a motion to strike the medical provider’s reply to the insurer’s response to the motion to dismiss. The medical provider allegedly “served” a reply, on April 13, 2009, to the insurer’s response to the motion to dismiss. The insurer moves us to strike this document, which does not exist according to the appellate court clerk’s file. The appellate rules permit a party to “serve 1 response to a motion within 10 days of service of the motion.” Fla. R. App. P. 9.300(a) (emphasis added). See Lurie v. Auto-Owners Ins. Co., 605 So. 2d 1023, 1025 (Fla. 1st DCA 1992) (stating that the appellate procedural rules “do not authorize a reply to a response to a motion [referencing Fla. R. App. P. 9.300(a)], and such unauthorized pleadings are ordinarily ignored or sua sponte stricken by this court”).

Here, the medical provider did not submit its reply to our appellate court clerk. Rather than strike an unfiled document, we prohibit the medical provider from filing its reply to the insurer’s response to the motion to dismiss as unauthorized pursuant to Florida Rule of Appellate Procedure 9.300(a). Cf. Johnson v. State, 903 So. 2d 978, 980 (Fla. 5th DCA 2005); Schiming v. State, 890 So. 2d 316, 317-318 (Fla. 5th DCA 2004); Perez v. Perez, 769 So. 2d 389, 392-393 (Fla. 3d DCA 1999).

MOTION TO DISMISS CERTIORARI PETITION DENIED; MOTION TO STRIKE REPLY DENIED; MARCH 26, 2009 REQUEST FOR APPELLATE ATTORNEY’S FEES DENIED; REPLY TO RESPONSE PROHIBITED; ORDER TO SHOW CAUSE ISSUED BY SEPARATE APPELLATE ORDER.

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¹The insurer alleges, in its motion to strike the medical provider’s reply, that on April 13, 2009, the medical provider served its reply to the insurer’s response to the motion to dismiss. As of June 11, 2009, the appellate court clerk’s office could not locate the medical provider’s reply.

²Although the medical provider failed to properly move for appellate attorney’s fees in its motion to dismiss, it did file a separate motion for appellate attorney’s fees on March 31, 2009. In the March 31, 2009 motion, the medical provider seeks appellate attorney’s fees pursuant to Florida Statutes 627.736 and 627.428. At this juncture, we express no opinion on the March 31, 2009 motion.

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(Muir, J., specially concurring.) The medical provider failed to wait for the circuit appellate panel to issue an order to show cause requiring its response to the insurer’s certiorari petition. In addition to prohibiting any reply to the insurer’s response to the medical provider’s motion to dismiss, we should deny the medical provider’s motion to dismiss the instant certiorari petition and March 26, 2009 motion for appellate attorney’s fees.

An appellate panel does not need a motion to dismiss before our preliminary review of the certiorari petition. Furthermore, a motion to dismiss in certiorari proceedings is not authorized except in unusual cases.

Specific reference to motions to quash or dismiss appeals contained in former rules 3.9(b) and (c) has been eliminated as unnecessary. It is not intended that such motions be abolished. Courts have the inherent power to quash frivolous appeals, and [Rule 9.300] subdivision (a) guarantees to any party the right to file a motion.

Fla. R. App. P. 9.300 (1977 Amendment). Although motions to dismiss may be useful in certain circumstances, no such circumstances are apparent here.