17 Fla. L. Weekly Supp. 340a
Online Reference: FLWSUPP 1705COL2Insurance — Personal injury protection — Discovery — Error to enter ex parte order compelling discovery where motion to compel did not allege complete failure of insurer to respond or object to request for discovery
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. DONA COLLINS, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-046669. February 5, 2010. Counsel: Lara J. Edelstein, Miami, United Automobile Insurance Company, for Petitioner. Vincent J. Rutigliano, Hollywood.
OPINION
(PHILLIPS, Judge.) THIS CAUSE came before the Court on Petition for Writ of Certiorari filed by Petitioner, United Automobile Insurance Company. The Court having considered same, having reviewed the applicable law and being otherwise duly advised in premises, finds and decides as follows:
In the underlying matter, Respondent (Plaintiff below) filed a complaint to recover personal injury protection (PIP) benefits. On June 25, 2009, Respondent served a Supplemental Request for Production upon Petitioner (Defendant below). Thereafter, Petitioner filed its Objections to Respondent’s Supplemental Request for Production.
Respondent did not file a motion to compel, but instead, on July 21, 2009, sent a letter to the Trial Court enclosing its June 25, 2009 Supplemental Request for Production and the Defendant’s Objection thereto. Thereafter, on July 27, 2009, without conducting a hearing on the matter, the Trial Court entered an ex-parte Order on Defendant’s Objections to Plaintiff’s June 25, 2009 Supplemental Request for Production which overruled Defendant’s objections and required Defendant to produce the requested documents within 10 days.
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 issue the writ or certiorari and quash the trial court’s order, the order must be a violation of clearly established law which, if upheld, would result in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000).
Petitioner correctly argues that an ex-parte order compelling discovery pursuant to Local Rule No. 11, Seventeenth Judicial Circuit, may be entered only when the motion to compel alleges the complete failure of the other party to respond or object to discovery, and there has been no request for an extension of time. Where those conditions are not met, the motion may not be heard without proper notice. Waters v. American General Corp., 770 So. 2d 1275 (Fla. 4th DCA 2000). Indeed, Respondent filed no motion to compel and no hearing was had on Petitioner’s objections to Respondent’s request for discovery.
Where those conditions are not met, Florida Rules of Civil Procedure 1.380(a) and 1.090(d) apply, requiring that the motion not be heard without proper notice. See American Cas. Ins. Co. v. Bly Elec. Const. Serv., Inc., 562 So. 2d 825 (Fla. 4th DCA 1990). In the present case, we find that Respondent failed to show that there was a complete failure to respond or object to the Supplemental Request for Production. Accordingly, we grant the petition for writ of certiorari and quash the Trial Court’s July 27, 2009 ex-parte order overruling Respondent’s objections and ordering production of the documents.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED and the Trial Court’s July 27, 2009 order is quashed.
