22 Fla. L. Weekly Supp. 786a

Online Reference: FLWSUPP 2207DIAZInsurance — Personal injury protection — Discovery — Appeals — Order denying insurer’s request for production of insured’s employment records does not merit certiorari review where insurer claims records are necessary to establish that accident may have been staged during time that elapsed between time of accident reported by insured and actual time of accident, but insurer’s affirmative defenses and counterclaim plead material misrepresentations in application, not fraud from staged accident, and records are unlikely to lead to additional evidence of fraud by insured who has admitted to time discrepancy

IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. FLORIDA SERVICES & SOLUTIONS CORPORATION a/a/o ANA DIAZ, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13- 318 AP. L.T. Case No. 12 -08461 CC 25. January 16, 2015. An appeal from the County Court of the Eleventh Judicial Circuit, Gloria Gonzalez-Meyer, J. Counsel: Douglas Stein, Seipp, Flick, & Hosley, for Petitioner. Marlene Reiss, Law Offices of Marlene Reiss, P.A., for Respondent.

(Before MARIN, WALSH and CYNAMON, JJ.)

(WALSH, Judge.) Imperial Fire And Casualty Insurance Company (Imperial), petitions this Court for writ of certiorari to quash the trial court’s order prohibiting the production of and access to certain employment records of its insured, Ana Diaz. This Court finds the trial court’s order denying disclosure of the claimant’s employment records did not constitute a departure from the essential requirements of law and will not irreparably harm Imperial’s claims or defenses. Accordingly, certiorari is unwarranted, this Court denies the writ and remands this matter for further proceedings consistent with this opinion.

Background

Florida Services & Solution Corporation (Florida Services) filed a lawsuit against Imperial for failure to pay PIP benefits for medical services rendered to Ana Diaz, Imperial’s insured. During the course of the PIP litigation, Imperial served the insured’s employer, a nonparty, with a Notice of Production, which sought “any and all employment records, applications, W-2 forms, evaluations, incident reports, disciplinary actions, worker’s compensation information, training records, pay records, total hours worked for the months of July, 2011 and April 2013, and other employment information regarding the insured, Ana Diaz.” Florida Services objected to the Notice of Production.

At the hearing, Imperial asserted that the information sought was relevant to Ms. Diaz’s credibility as to the time of the accident based on the hours she actually worked.¹ In deposition, Ms. Diaz testified that the accident occurred an hour and a half to two hours after the reported time of accident. Imperial argued that the employment records could be relevant to prove that the insurance claim was false based on a staged accident. The trial court found that the information sought was not probative, especially where the insured was not making any claim for lost wages. The court further noted that the time discrepancy cited by Imperial as grounds for the production was negligible and did not justify the disclosure. The trial court sustained Florida Service’s objection, thereby denying the request for production.

The Petition

In support of its petition, Imperial argues that the employment records are necessary to establish Imperial’s theory of the case, i.e., that the accident may have been staged during an unaccounted for 2 1/2 hours. Imperial further claims that the requested discovery, if denied, would materially impair the pending declaratory judgment counterclaim and affirmative defenses concerning coverage of fraudulent claims. Therefore, the trial court should have permitted access to the employment records.

The flaw in Imperial’s position is that Imperial’s affirmative defenses and counterclaim for declaratory relief do not plead a claim for fraud for a staged accident. Rather, Imperial’s affirmative defenses and counterclaim allege material misrepresentation for Ms. Diaz’s misstatements in her application for insurance coverage. Further, it is unclear how Imperial’s broad request would produce any evidence supporting a claim for staged accident. Ms. Diaz admitted the time discrepancy in her deposition. Her W-2 forms, past worker’s compensation claims, pay records, and other documents requested are unlikely to lead to any additional evidence that on the day of this accident, she committed fraud.

Standard of Review & Analysis

To merit certiorari review of the trial court’s order denying discovery, the Petitioner must demonstrate 1) that the harm caused by the error constitutes a material injury which will affect the remainder of the proceedings for which the remedy on appeal will be inadequate; and 2) that the irreparable harm was caused by a departure from the “essential requirements of the law.” Bd. of Trustees of the Internal Improvement Trust Fund v. Am. Educ. Enters. LLC, 99 So.3d 450, 454 (Fla.2012) [37 Fla. L. Weekly S589a]; Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a]; A.G. v. Fla. Dept. of Children and Families, 65 So. 3d 1180 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D1593a].

Courts have repeatedly cautioned that certiorari should not be used to expand jurisdiction to include review of every interlocutory discovery order which rarely implicates irreversible harm; or used to circumvent a judicial policy disfavoring piecemeal review. The Third District Court of Appeal recently explained in Damsky v. Univ. of Miami, __ So. 3d __, 2014 WL 6911338 (Fla. 3d DCA Dec. 10, 2014) [39 Fla. L. Weekly D2560b] that especially in review of orders denying discovery, certiorari is extremely limited:

[A]n order that denies discovery normally does not rise to the level of irreparable harm because it can be readily remedied on appeal; therefore, “orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.” Neeley v. CW Roberts Contracting, Inc., 948 So.2d 844 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D335b]; see also Esman v. Bd. of Regents, 425 So.2d 156, 157 (Fla. 1st DCA 1983) (“[T]he trial court’s interlocutory ruling denying discovery does not furnish the occasion for this court’s intervention through the use of the extraordinary writ.”).

Here, certiorari is not warranted for two reasons. First, discovery “is limited to those matters relevant to the litigation as framed by the parties’ pleadings.” Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D1663a] (citations omitted). The affirmative defenses and counterclaim pled by Imperial addressed material misrepresentation in the claimant’s initial application for insurance, not an alleged fraud related to a time discrepancy in the accident itself. Imperial did not plead an allegation that this accident was staged or that it did not occur. Thus, any issue concerning the timing of when the accident was alleged to have occurred, allegedly off by one to two hours, was not framed by the pleadings.

Second, to warrant certiorari review, an order denying discovery must “effectively eviscerate” a party’s claim or defense and leave no other practical method of discovery that would have determined the outcome of the proceedings. Kmart Corp. v. Sundmacher, 997 So. 2d 1158 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2760a] (holding certiorari is appropriate when there is an inability to obtain the materials by other means). Here, the information Imperial wishes to discover certainly did not eviscerate its claim or defenses and can be obtained from alternative means.

Since this Court finds no departure from the essential requirements of law and no irreparable harm requiring immediate review, we decline to grant certiorari relief. Therefore, the Petition for Writ of Certiorari is hereby DENIED.

Accordingly, Imperial’s motion for attorney’s fees is denied as well. Florida Services, however, is entitled to an award of appellate attorney’s fees contingent upon prevailing on the merits in the proceedings below. Allstar Builders Corp., Inc. v. Zimmerman, 706 So.2d 92 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D518a] (the party prevailing on the interlocutory appeal must also be the ultimate prevailing party in the trial court to be entitled to a final judgment of appellate fees from the interlocutory appeal). In the event Florida Services does prevail in the proceedings on remand, the trial court is directed to assess the appropriate amount of appellate attorney’s fees. (MARIN and CYNAMON, JJ., concur.)

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¹Although not argued, the insurer’s request for Ms. Diaz’s “applications, W-2 forms, evaluations, incident reports, disciplinary actions, worker’s compensation information, training records, pay records, total hours worked for the months of July, 2011 and April 2013” is not narrowly tailored to yield evidence of the time of accident.

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