17 Fla. L. Weekly Supp. 519b
Online Reference: FLWSUPP 1707LUNAInsurance — Automobile — Discovery — No error in compelling insurer to produce transcript of insured’s examination under oath concerning another accident where insurer’s property damage manager testified in deposition that he mistakenly relied on file for other accident when responding to civil remedy notice in instant case involving damage to rental car driven by insured
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. HUGO LUNA-PIZARRO, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-631 AP. L.C. Case No. 08-11834-CC 25. February 9, 2010. Jacqueline Schwartz, Judge. Counsel: Julie Congress, for Petitioner. George A. David, for Respondent.
ORDER DENYING PETITIONER’S WRIT OF CERTIORARI
This matter came before this Circuit Court’s Appellate Division as a common law Certiorari Petition from a county court non-final discovery order. This Court having reviewed the Petition, the Appendix, applicable case law, and the Florida Rules of Civil Procedure finds and rules as follows:
Statement of Facts
1. United Automobile Insurance Company (“United Auto”), the Petitioner, issued an automotive insurance policy to Mr. Hugo Luna-Pizzaro (“Luna-Pizarro”), the Respondent. Luna-Pizarro was involved in an automobile accident on September 9, 2003 driving a rental car. Luna-Pizarro rented the car from Avis Rent-A-Car Systems, Inc.
2. Luna-Pizarro submitted an insurance claim to United Auto for property damage to the Avis rental car. United Auto denied coverage, asserting that Luna-Pizzaro’s policy did not cover rental cars. Luna-Pizarro filed a lawsuit seeking insurance benefits and coverage for the property damage to the rental car.
3. Luna-Pizzaro’s attorney sent a notice of deposition with subpoena duces tecum to Christopher Dowd, a property damage manager working for United Auto. United Auto filed written objections to the subpoena duces tecum. During the deposition, Mr. Dowd asserted that he made a mistake in a statement he made responding to a civil remedy notice for the September 9, 2003 accident. He indicated that he erroneously relied on information from a different file involving Luna-Pizzaro concerning a date of loss of March 4, 2004. Mr. Dowd admitted to the error made in his statement in which he responded to the civil remedy notice, but refused to answer any questions concerning the March 4, 2004 loss.
4. Luna-Pizarro moved to continue the deposition of Mr. Dowd, to compel him to answer questions about the March 4, 2004 loss and to produce documents concerning that loss date. The trial court heard the motion on November 17, 2009. The trial court granted production of a transcript of an examination under oath (“EUO”) from the March 4, 2004 loss and reserved ruling on the remainder. The trial court ordered United Auto to produce the EUO transcript to Luna-Pizarro within 30 days. United Auto filed the Petition for Writ of Certiorari subsequent to this order, on December 16, 2009.
Analysis
5. A petition for certiorari is appropriate to review a discovery order when the “order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.1995) (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987)). A trial court has wide discretion in treating discovery problems and a reviewing court will not ordinarily disturb that discretion. Abelson v. Bosem, 329 So. 2d 330 (Fla. 3d DCA 1976), cert. denied 341 So. 2d 289.
6. “[N]ot every erroneous discovery order creates certiorari jurisdiction in an appellate court.” Savage, 509 So. 2d at 1100. Some orders entered in connection with discovery proceedings are subject to adequate redress by plenary appeal from a final judgment. See City of Miami Beach v. Town, 375 So. 2d 866, 867 (Fla. 3d DCA 1979) (finding in part that discovery concerning an ongoing police investigation was improper but denying certiorari as to the remaining portions of the discovery order that “would effect no substantial injury on the city”).
7. United Auto asserts that the trial court erred by ordering United Auto to provide a transcript of the EUO from the March 4, 2004 loss, because the issue of coverage is in dispute and has not been resolved. United Auto further contends that disclosure of this transcript would cause irreparable injury because evidence used to prove either bad faith or unfair practices could prejudice resolution of the issue of coverage. This Court disagrees with United Auto’s argument.
8. Florida law provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Fla. R. Civ. P. 1.280(b)(1). Rule 1.280(c) of the Florida Rules of Civil Procedure provides that the court may restrict or deny discovery “for good cause shown.” United Auto has failed to show good cause by relying on the mere conclusory assertion that the EUO would be irrelevant. See Sabol v. Bennett, 672 So. 2d 93, 94 (Fla. 3d DCA 1996) (finding that the trial court erred in disallowing plaintiff’s questions directed to the witness regarding prior alcohol and drug use of the defendant where substance abuse could lead to admissible evidence and thus defendant would be unable to show good cause for restricting discovery regarding it).
9. United Auto claims it is “not relying on the EUO transcript in this lawsuit.” Pet. Cert. 17. However, United Auto never specifically stated that it would never use the EUO at trial in the November 17, 2009 hearing, or in the Petition for Writ of Certiorari. The EUO is a statement from Luna-Pizzaro himself, given to United Auto. The EUO may contain responses from Luna-Pizarro that relate to material matters about him that could become relevant to the September 3, 2003 accident and the existence of insurance coverage. The EUO may also contain statements that relate to relevant and material substantive evidence which overlaps the two accidents.
10. Alternatively, United Auto could conceivably use this document to impeach Luna-Pizarro during his testimony, relying on § 90.608, Fla. Stat. (2009). This could result in an unfair surprise to Luna-Pizarro. See Northrup v. Acken, M.D., P.A., 865So. 2d 1267, 1271 (Fla. 2004) (“We conclude and specifically announce today that all materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are subject to proper discovery requests under Surf Drugs, Dodson, and a host of lower court decisions, and are not protected by the work product privilege.”).
11. Luna-Pizzaro’s counsel indicated that the EUO transcript may well lead to impeachment evidence concerning the testimony of Mr. Dowd, as well, he provided a written statement (his response to the civil remedy notice), concerning the accident of September 9, 2003. Mr. Dowd allegedly relied on information obtained from the March 4, 2004 loss in making the statement, including the EUO. Mr. Dowd now claims his use of the materials was erroneous, but his refusal to answer questions concerning that error and the extent of his reliance on the information involving the error could affect whether United Auto made a proper decision regarding coverage. Additionally, the EUO may bear on the veracity of Mr. Dowd’s deposition testimony and could be potentially used by Luna-Pizarro under § 90.608. See Miami Transit Co. v. Hurns, 46 So. 2d 390, 391 (Fla. 1950) (noting that adversarial data and material may be turned over in discovery “(1) when witnesses are no longer available or can be reached only by great difficulty, (2) if it gives clues to relevant facts that cannot be secured otherwise, or (3) for purposes of impeachment”).
12. Because the EUO is in the sole possession of United Auto, and Luna-Pizzaro cannot obtain it through any other means, United Auto is the sole party capable of producing the EUO transcript. Colonial Penn Insurance Company v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980) (finding that the trial court erred in denying the discovery production of a transcript containing a defendant’s sworn statement where the plaintiff was the sole possessor of the transcript and there was no other means of defendant obtaining the statement).
Therefore, this Court DENIES United Automobile Insurance Company’s Petition for a Writ of Certiorari. Consequently, the county court’s order REMAINS IN FORCE. (FIRTEL, KARLAN, and SCHUMACHER, JJ.)
