17 Fla. L. Weekly Supp. 416b

Online Reference: FLWSUPP 1706CRUZInsurance — Personal injury protection — Discovery — Depositions — Error to compel insurer’s litigation adjuster to attend deposition in Miami-Dade County where insurer did not seek affirmative relief but merely asserted affirmative defenses

INFINITY INSURANCE COMPANY, Appellant, v. GABLES INSURANCE RECOVERY, a/a/o Raquel Cruz, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-144 AP. L.C. Case No. 08-1187 SP 21. March 1, 2010. On interlocutory appeal from a non-final order rendered by the Miami-Dade County Court, Hon. Ana M. Pando. Counsel: Douglas H. Stein, Seipp & Flick, for Appellant. G. Bart Billbrough, Billbrough & Marks, P.A., for Appellee.

(Before DIAZ, TINKLER MENDEZ, and COLODNY, JJ.)

(PER CURIAM.) An insurance policy governed the relationship between Raquel Cruz (“insured”) and Infinity Insurance Company (“insurer”). This insurance policy contained a provision providing personal injury protection benefits. The insured suffered injuries from an automobile accident and sought treatment. She assigned her entitlement to insurance benefits to the medical provider, which subsequently assigned its entitlement to Gables Insurance Recovery (“claimant”). The insurer allegedly failed to pay the personal injury protection benefits.

The claimant filed an amended complaint. In its answer, the insurer raised thirteen (13) affirmative defenses. The insurer “raised no counterclaim, no cross-claim, and sought no relief other than a judgment and appropriate costs.” The claimant moved the trial court to compel the insurer’s adjustors to attend the deposition in Miami-Dade County, Florida. The claimant asserted that by pleading affirmative defenses, the insurer effectively sought affirmative relief, thus requiring that the adjustor’s deposition occur in Miami-Dade County. The trial court ordered the adjustor¹ to attend the deposition in Miami-Dade County. The trial court relied upon United Auto. Ins. Co. v. Del Grosso Chiropractic, P.A., 15 Fla. L. Weekly Supp. 1056a (Fla. 11th Cir. Ct. Sept. 15, 2008), cert. den., 996 So. 2d 864 (Fla. 3d DCA 2008). The trial court rendered its order prior to the circuit appellate court’s dispositive decision in AMEX Assurance Co. v. Gables Ins. Recovery, Inc., 16 Fla. L. Weekly Supp. 721a (Fla. 11th Cir. Ct. June 15, 2009), which clarified the confusion caused by Del Grosso.

We review a trial court’s discovery order under the abuse of discretion standard. Progressive Am. Ins. Co. v. Virtual Imaging Servs., Inc., 16 Fla. L. Weekly Supp. 293b (Fla. 11th Cir. Ct. Feb. 20, 2009). A trial court abuses its discretion by incorrectly applying the law. McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006). Here, the insurer submitted a common-law certiorari petition as the appellate vehicle to obtain our review. However, Florida Rule of Appellate Procedure 9.130(a)(1) provides the more appropriate appellate path for the circuit appellate court to review this interlocutory appeal from a non-final order.² We consider this proceeding as an interlocutory appeal, pursuant to Florida Rule of Appellate Procedure 9.130(a)(1), as opposed to a common-law certiorari proceeding.

The insurer argues that because it did not seek affirmative relief, the trial court can not compel its adjustor to appear in Miami-Dade County for the deposition. AMEX clarified the difference between affirmative relief as compared to an affirmative defense. 16 Fla. L. Weekly Supp. 721a. See Id. (“ ‘counterclaims and affirmative defenses are separate and distinct terms’) (emphasis removed) (citing Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 731, 733 (Fla. 1991)); AMEX, 16 Fla. L. Weekly Supp. 721a (“a ‘counterclaim is a cause of action that seeks affirmative relief, while an affirmative defense defeats the plaintiff’s cause of action by a denial or confession and avoidance’ ”) (citing Kirian, 579 So. 2d at 733). AMEX further noted 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’.” 16 Fla. L. Weekly Supp. 721a. In dicta, the panel stated that the trial court violated the law’s essential requirements by requiring the Wisconsin adjustor to appear for the deposition in Miami-Dade County even though AMEX did not seek any affirmative relief. Id. The AMEX appellate panel reasoned that AMEX did not seek affirmative relief because it filed an answer with six (6) affirmative defenses, and it did not file a counterclaim, cross-claim, or third-party complaint. Id. AMEX controls the issue before us.

Here, the insurer did not seek affirmative relief in its answer but merely asserted affirmative defenses. We conclude that the trial court erred by ordering the litigation adjustor to appear for deposition in Miami-Dade County where the insurer did not seek affirmative relief but merely asserted affirmative defenses. The trial court abused its discretion by not following the law. McCray, 919 So. 2d at 649. We reverse the county court’s non-final order and remand this matter for further proceedings.³

The claimant seeks appellate attorney’s fees pursuant to section 627.428, Florida Statute. The statute requires that the circuit appellate court award the claimant appellate attorney’s fees if the Court renders a judgment “against an insurer” and “in favor” of the claimant. § 627.428, Fla. Stat. (2009). This reversal renders an interlocutory appellate judgment in the insurer’s favor. Because the insurer prevails in this interlocutory appellate proceeding, we deny the claimant’s motion for appellate attorney’s fees.

Reversed and remanded.

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¹The claimant originally sought to depose two adjustors. The trial court’s non-final order concerned only one adjustor.

²See Fla. R. App. P. 9.130(a)(1) (“This rule applies . . . to appeals to the circuit court of non-final orders when provided by general law”)(emphasis added); Id. (1977 Amendment) (“It is anticipated that because the most urgent interlocutory orders are appealable under this rule, there will be very few cases in which common law certiorari will provide relief”) (emphasis added); Am. Federated Title Corp. v. A&M Florida Props., LLC, 17 Fla. L. Weekly Supp. 84b (Fla. 11th Cir. Ct. Dec. 9, 2009) (considering section 26.012, Florida Statute as the general law permitting the circuit appellate court to conduct interlocutory review pursuant to Rule 9.130(a)(1) and concluding that section 26.012(1), Florida Statute “does not exclude interlocutory appeals from the circuit court’s appellate review”).

³The fact that the trial court rendered the instant non-final order prior to the circuit appellate court deciding AMEX does not escape our attention. We understand that the trial court lacked AMEX’s clarification anent distinguishing affirmative relief from affirmative defenses. Nonetheless, the Third District Court of Appeal provided guidance on this issue prior to the Del Grosso and AMEX opinions. See Teledyne Indus., Inc. v. Mustang Ranch Aircraft, Inc., 753 So. 2d 785 (Fla. 3d DCA 2000) (quashing the order requiring the defendant corporation’s representative to appear for the deposition in Miami-Dade County instead of the headquarters in Alabama where the defendant did not seek affirmative relief).