21 Fla. L. Weekly Supp. 626a
Online Reference: FLWSUPP 2107HHERInsurance — Personal injury protection — Discovery — Adjuster notes — Trial court erred in failing to provide in camera inspection to review adjuster’s notes generated prior to receipt of demand letter to determine applicability of work product privilege — In separate case, because of absence of transcript of hearing on motion to compel production of same adjuster’s notes before different a trial judge, trial court’s ruling requiring insurer to produce notes is affirmed
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. SOUTH MIAMI HEALTH CENTER, INC. a/a/o Haysel Herrera, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 10-249 AP & 11-433 AP (Consolidated). L.C. Case No. 09-7842 SP 25. October 23, 2013. On appeal from the County Courts of Miami-Dade County, Jacqueline Schwartz and Patricia Pedraza, Judges. Counsel: Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, for Petitioner. George A. David, George A. David, P.A., for Respondent.
Respondent/Plaintiff South Miami Health Center, Inc. (SMHC) a/a/o Haysel Herrera filed a Motion for Rehearing subsequent to the filing of this Appellate Court’s initial opinion. After review, this Court GRANTS Respondent SMHC’s motion for rehearing and substitutes the opinion below in place of its prior opinion.
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[Editor’s note: Rehearing denied 11-27-2013, 21 Fla. L. Weekly Supp. 234b.]
(Before BLAKE, LOPEZ, and DIAZ, JJ.)
(PER CURIAM) This is an appeal, via two petitions for writ of certiorari, of two discovery/production orders rendered in the same case (09-842 SP 25) below. Thus, the writs were consolidated for purposes of appellate review. When rendering the May 13, 2010/First Production Order on appeal (Case No. 10-249 AP), the trial court granted Respondent/Plaintiff SMHC’s (combination) Motion to Compel Better Answers to Insurance Information Request for Production and Motion to Compel Better Answers to Adjuster’s Notes and Final Request for Production. The June 23, 2011/Second Production Order on appeal (Case No.11-433 AP), rendered below by a different trial court judge, granted Respondent/Plaintiff SMHC’s Motion to Compel Better Answers to Adjuster’s Notes and E-Mails Request for Production. This Appellate Court grants the Petition for Writ of Certiorari for Case No. 10-249 AP, and denies the Petition for Writ of Certiorari for Case No. 11-433 AP.
When reviewing the propriety of a discovery order by certiorari, “the applicable standard of review is whether the challenged order is a departure from the essential requirements of the law, which causes material injury throughout the law suit [sic], leaving the petitioner with no other adequate remedy to review the alleged erroneous order.” Govt. Employees Ins. Co. v. Rodriguez, 960 So. 2d 794, 795 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1514a]; see State Farm Fla. Ins. Co. v. Puig, 62 So. 3d 23, 25 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D608c] (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a]; Combs v. State, 436 So.2d 93 (Fla. 1983).
Petition for Writ of Certiorari Case No. 10-249 AP
The May 13, 2010/First Production Order appealed via petition for writ of certiorari (10-249) was rendered pursuant to a hearing convened on May 13, 2010. The trial judge decided that Petitioner/Defendant State Farm Mutual Automobile Insurance Company’s (State Farm) adjuster’s notes were not entitled to automatic protection from production by the work product privilege, even though the notes are a part of its insurance claim file. In response, Petitioner State Farm requested an in camera inspection be conducted for the purpose of examining the adjuster’s notes to determine whether the work product privilege automatically attached once the notes became a part of the Petitioner’s insurance claim file. Automatic attachment of the work product privilege to the adjuster’s notes would protect them from production,
The trial court denied Petitioner’s request for an in camera inspection. It reasoned that the work product privilege did not attach because the adjuster’s notes were not generated in “anticipation of litigation”. Pursuant to this determination, the trial court issued the May 13, 2010/First Production Order requiring Petitioner State Farm to surrender its adjuster’s notes generated prior to receipt of the first demand letter sent by Respondent SMHC. Furthermore, the notes were to be provided to Respondent within thirty (30) days.
Case law explains that when the work product and/or the attorney-client privilege are asserted, a court must hold an in camera inspection of the discovery material at issue to rule on the applicability of the privileges. Lloyd’s Underwriters at London v. El-Ad Villagio Condo. Assoc., Inc., 976 So. 2d 28, 29 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D283b] (quashing discovery order for failure to provide in camera inspection); Del Carmen Calzon Capital Bank, 689 So. 2d 279, 281 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2603a] (petition granted, order quashed, trial court directed to conduct in camera inspection of claims of applicability of work product/attorney-client privilege); Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356, 358 (Fla. 4th DCA 1991).
This Court finds that the trial court failed to follow the essential requirements of the law, and in doing so, committed error which cannot be adequately remedied on appeal. The error occurred when the lower court failed to provide an in camera inspection to review the adjuster’s notes generated prior to receipt of Respondent SMHC’s first demand letter, once the claim of entitlement to the work product privilege was advanced by Petitioner State Farm at the May 13th hearing. Accordingly, this Appellate Court grants Petitioner State Farm’s petition for writ of certiorari numbered 10-249 AP, thereby quashing the order rendered by the lower court on appeal pursuant to this petition.
Petition for Writ of Certiorari Case No. 11-433 AP
The June 23, 2011/Second Production Order appealed via petition for writ of certiorari (11-433 AP) was rendered, by a different trial judge, pursuant to a hearing convened on June 23, 2011. A copy of the transcript or a legally acceptable substitute for the June 23rd hearing was not provided by the Petitioner for this Court’s use for review. This Appellate Court notes that case law instructs that the decision of a lower tribunal comes to the appellate arena clothed in a presumption of correctness; the burden is on the appellant to demonstrate error. Applegate v. Barnett Bank, 377 So. 2d at 1152; Wright v. Wright, 431 So. 2d 177, 178 (Fla. 5th DCA. 1983). Furthermore, the requirement of a transcript, or an acceptable equivalent, applies so that on appeal an appellate court can evaluate the legal basis of the lower tribunal’s ruling. See Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2007) [33 Fla. L. Weekly D56a]; Smith v. White, 816 So. 2d 209, 209 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1128c]. If the Appellant cannot demonstrate reversible error on the face of the record without a hearing transcript, or a proper substitute, this Appellate Court must affirm the lower court’s decision. Applegate, 377 So. 2d at 1152; Smith, 816 So. 2d at 209.
Admittedly, there was no transcript, or legally acceptable equivalent, of the June 23, 2011 trial court hearing provided for the use of the Appellate Court for review purposes. Without it, the specific arguments made and exact responses provided, as well as the lower court’s analysis of the information presented before it, cannot be determined. Accordingly, this Appellate Court denies the writ of certiorari numbered 11-433 AP, thereby affirming the order rendered by the lower court on appeal pursuant to this petition.
Attorney’s Fees
As mentioned before, this matter involves the appeal of two production orders via two separate petitions for writ of certiorari — Case No. 10-249 AP & Case No. 11-433 AP. These Orders were rendered by two different county court judges pursuant to two different motions. Interestingly enough, both motions involved the surrender of the same adjuster’s notes, which were purportedly generated by Petitioner State Farm prior to receipt of Respondent SMHC’s first demand letter. These motions, however, were submitted during the litigation of the same case. Consequently, both petitions were consolidated for appellate review purposes.
1) Petition for Writ of Certiorari Case No. 10-249 AP
This Appellate Court grants Petition for Writ of Certiorari 10-249 AP. Consequently, Petitioner State Farm is the prevailing party with regard to petition 10-249 AP and is entitled to appellate attorney’s fees pursuant to section 768.19 of the Florida Statutes and Florida Rule of Appellate Procedure 9.400.
2) Petition for Writ of Certiorari Case No. 11-433 AP
In addition, this Appellate Court denies Petition for Writ of Certiorari 11-433 AP, making Respondent SMHC the prevailing party. Therefore, Respondent SMHC is entitled to attorney’s fees pursuant to section 627.736 and 627.428 of the Florida Statutes.
Petition for Writ of Certiorari 10-49 AP is GRANTED, while Petition for Writ of Certiorari 11-433 AP is DENIED.
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