16 Fla. L. Weekly Supp. 1029a
Online Reference: FLWSUPP 1611DELC
Insurance — Personal injury protection — Discovery — Appeals — Petition for writ of certiorari seeking review of order compelling answers to interrogatories is denied where insurer’s claim of irreparable harm is based on speculation that insurer will not able to answer interrogatories, medical provider will move to strike insurer’s expert, provider’s motion will be granted, and insurer will be left without a defense — Moreover, insurer acknowledges that issue can be reviewed on plenary appeal
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. DAVIE HEALTH & REHABILITATION, INC, a/a/o Muriel Del Canto, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-015832 (25). L.T. Case No. 08-05498 COCE 51. September 21, 2009. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel/Trial Division, Miami. Dean A. Mitchell, Ocala; and Cris E. Boyar, Margate, for Respondent.
ORDER
(CAROL-LISA PHILLIPS, J.) THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by Petitioner, United Automobile Insurance Company. For the reasons hereinafter stated, the Petition for Writ of Certiorari is denied.
Respondent filed a complaint against Petitioner in county court on April 8, 2008, seeking to recover Personal Injury Protection (PIP) benefits pursuant to an assignment of benefits from Muriel Del Canto. On July 11, 2008, Respondent served interrogatories on the Petitioner. Petitioner filed a motion for protective order regarding the interrogatories on January 13, 2009 and said motion was heard before the Honorable Judge Dishowitz on February 17, 2009. The motion was denied in part and Petitioner was ordered to answer the interrogatories pursuant to the court’s instructions.
Petitioner subsequently appealed to this Court seeking a writ of certiorari quashing said order. Petitioner claims that they would be materially injured for the remainder of this action if the order is not quashed because the Petitioner may not comply with the order, Respondent would then move to strike the witness, which would be granted, and would leave Petitioner without their sole expert witness and defense.
When a petition for writ of certiorari is before the court, it must be reviewed to determine if the petitioner has made a showing that if certiorari is not granted, material injury resulting in irreparable harm will result. Bared & Co. v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996). For an appellate court to quash the trial court’s order by writ of certiorari, the order must also be a violation of clearly established law that, if upheld, would result in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). The petitioning party “must establish that an interlocutory order creates material harm [that is] irreparable by a post-judgment appeal before the court has power to determine whether the order departs from the essential requirements of the law.” Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995). If the petitioning party cannot establish irreparable material harm, then the petition is premature and must be denied. Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d 336, 340 (Fla. 5th DCA 2005).
In the instant case, Petitioner has not established that the order will create irreparable material harm. Petitioner’s argument for irreparable material harm is based on speculation that Petitioner will not be able to answer the questions, that if they are unable to answer the questions then Respondent will motion to strike the expert witness, that the court will grant the motion, and Petitioner will be left without a defense. There is no indication that the above stated scenario will happen and is pure speculation on the part of Petitioner.
Additionally, Petitioner acknowledges that “this issue may be reviewed on plenary appeal.” (PA:7). By Petitioner’s own admission, this petition is premature because Petitioner cannot establish that this issue is irreparable by a post-judgment appeal.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.
