16 Fla. L. Weekly Supp. 416a

Online Reference: FLWSUPP 165DIXON

Insurance — Personal injury protection — Discovery — Depositions — Corporate representative — Fact that insurer named pre-litigation adjuster as person with most knowledge of claim in response to interrogatories did not mean adjuster is corporate representative designated to testify at deposition, especially where there is nothing to indicate that adjuster would have knowledge of affirmative defenses sought in notice of deposition — Error to require adjuster to appear for deposition as insurer’s corporate representative

UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. PHYSICIAN’S FIRST CHOICE INTERPRETATION, INC., a/a/o Katrina Dixon, Respondent. Circuit Court, 17 Judicial Circuit (Appellate) in and for Broward County. Case No. 08-29045 (11). L.T. Case No. 08-3430 COCE 53. March 17, 2009. Counsel: Lara Edelstein, Office of the General Counsel, United Automobile Insurance Company, Miami. Caroline V. Perlegas, Marks & Fleischer, P.A., Fort Lauderdale.

ORDER AND OPINION

(ANA I. GARDINER, J.) THIS CAUSE is before the Court on Petition for Writ of Certiorari filed by Petitioner United Automobile Insurance Company. The Court having considered same, and being otherwise duly advised in premises, dispenses with oral argument and finds and decides as follows:

Respondent, Physician’s First Choice Interpretation, Inc. (Physician’s Choice) filed a complaint for the recovery of Personal Injury Protection (PIP) benefits against Petitioner, United Auto Insurance Company (UAIC). Subsequent to UAIC filing a motion to dismiss, Physician’s Choice filed an amended complaint containing claims for declaratory judgment, breach of contract for failure to provide a timely itemized specification or a sufficient itemized specification and breach of contract for late payment. UAIC filed an answer and affirmative defenses.

Physician’s Choice filed a Notice of Taking Deposition Duces Tecum which sought to depose “the Corporate Representative(s) of United Automobile Insurance Company with the most knowledge regarding the PIP claim file of Katrina Dixon that was handling the file at the time of the reduction or denial of plaintiff’s bill and; who has most knowledge with regard to the bases for all defendant’s affirmative defenses.” Counsel for UAIC informed Physician’s Choice that Luisa Gonzalez, the litigation adjuster assigned to the file, would appear at the deposition. However, Physician’s Choice insisted that the adjuster who denied the claim, Maria Guiteau, appear for the deposition. UAIC advised Physician’s Choice that Ms. Guiteau resides and works in Tampa and would not appear in Broward County for deposition. Physician’s Choice filed a motion to compel defendant’s appearance at deposition in the chosen forum, arguing that the corporate representative identified as the adjuster who denied the claim located in Tampa, Florida and will not appear for the deposition in Broward County, and that the corporate defendant’s deposition should be taken at its principal place of business which is in Miami-Dade County, Florida. UAIC argued in response that it is the provider who is insisting that the pre-litigation adjuster, Maria Guiteau, who resides and works in Tampa, Florida, appear for the deposition. Following a hearing, the trial court granted the motion to compel stating that Deponent Maria G. Guiteau shall be deposed at Defendant’s corporate office in Dade County, Florida. UAIC has timely filed this Petition for Writ of Certiorari.

Rule 1.310(b)(6), Fla. R. Civ. P., provides in pertinent part:

In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated shall testify about matters known or reasonable available to the organization.

UAIC argues that the trial court erred in requiring the litigation adjuster located in Tampa to be deposed in Dade County despite the fact that UAIC had designated another individual as the corporate representative. Physician’s Choice argues that UAIC did designate Maria Guiteau as the corporate representative with the most knowledge in the answers to interrogatories.

Question 4 of the Interrogatories sought the following information:

In Chronologic Order, list the name and address of each person who was involved in any way in handling the claim file involving Dixon and the dates during which said person handled the claim. Include the person who first took notice of the claim and include anyone from the S.I.U. department.

In response, UAIC gave the names of J. Anderson from 7-5-07; M. Guiteau from 9-17-07.

Question 5 asked if anyone who was listed in question 4 is no longer employed with you please provide the last date of employment and last known contact information. UAIC objected to the question as irrelevant and immaterial, and stated the M. Guiteau was the pre lit adjuster with the most knowledge of this claim, and is currently the litigation adjuster with the most knowledge of this claim.

While Maria Guiteau was named as the adjuster with the most knowledge of the claim in the interrogatories, the Notice of Taking Deposition Duces Tecum did not seek to depose an adjuster, but the “Corporate Representative” with the most knowledge regarding the PIP claim file of Katrina Dixon that was handling the file at the time of the reduction or denial of plaintiff’s bill and who has most knowledge with regard to the bases for all defendant’s affirmative defenses. Adding the language “that was handling the file at the time of the reduction or denial of plaintiff’s claim,” does not mean a person listed as a litigation adjuster on interrogatories is the “Corporate Representative” designated to testify at a deposition. Moreover, there is absolutely nothing which would indicate that Maria Guiteau would have knowledge of UAIC’s affirmative defenses, which the Notice also sought in the Corporate Representative named. Therefore, simply designating Maria Guiteau as the litigation adjuster with the most knowledge of the claim does not mean UAIC designated her as the Corporate Representative. Since, pursuant to Rule 1.130, Fla. R. Civ. P., UAIC has the right to designate the corporate representative to testify on its behalf at the deposition, the trial court departed from the essential requirements of law in requiring Maria Guiteau to appear in Miami-Dade County for the purposes of being deposed as UAIC’s corporate representative.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED. The Order of the trial court granting the Motion to Compel is Quashed. The corporate representative designated by UAIC in response to the Notice of Taking Deposition Duces Tecum shall be the person deposed by Physician’s Choice.