22 Fla. L. Weekly Supp. 422a
Online Reference: FLWSUPP 2204OCCEInsurance — Personal injury protection — Discovery — Claim file — Adjuster notes — Privilege — Insurer failed to preserve for review its claim that documents it had been ordered to produce were privileged where insurer raised privilege in motion for rehearing of trial court’s order finding that insurer waived right to object to request for production by failing to comply with original deadlines, but insurer abandoned the motion for rehearing by filing petition for writ of certiorari before trial court ruled on it — Petition for writ of certiorari denied without prejudice to insurer’s right to object to disclosure of entire claim file and to have file submitted to trial court for in camera inspection
STATE FARM MUTUAL AUTO INSURANCE COMPANY, Petitioner, vs. ROBERTO RIVERA-MORALES, M.D. (a/a/o FRANCKEL OCCEAN), Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No.13-360 AP. L.T. Case No. 12-2256-SP 26. October 14, 2014. An appeal from the County Court in and for Miami-Dade County, Florida, Judge Lawrence D. King. Counsel: Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, Florida and Matthew D. Hellman, Matt Hellman, P.A., Plantation, Florida, for Petitioner. Marlene S. Reiss, Marlene S. Reiss, Esq., P.A., Miami, Florida, for Respondent.
(Before KORVICK, CYNAMON, and WALSH, JJ.)
(PER CURIAM.) Appellant, State Farm Mutual Insurance Company (“State Farm”), seeks certiorari review of the county court’s September 10, 2013 order compelling the insurer to produce documents requested by Respondent, Roberto Rivera-Morales, M.D. (“Dr. Rivera-Morales”), upon finding that State Farm waived its objections after failing to respond to discovery for nearly fourteen (14) months.
In the underlying personal injury protection (“PIP”) case below, Dr. Rivera-Morales propounded requests for production upon State Farm on March 20, 2012. Among other items, Dr. Rivera-Morales sought:
26. All adjuster notes on this file up until the point of anticipation of litigation.
29. The Defendant’s entire claims file, including all documents which pertain in any way to coverage, benefits, liability, or damages in accordance with Allstate Indemnity Company vs. Ruiz, 2005 WL 774838 (Fla. 2005).
In an agreed June 28, 2012 order, the trial court granted State Farm an extension of time to respond to the discovery requests by July 18, 2012. See Fla. R. Civ. P. 1.350(b) (providing that the party to whom a discovery request is served shall serve a written response within 30 days after service of the request). Receiving no response from State Farm, on August 3, 2013, Dr. Rivera-Morales moved to compel State Farm to comply with the court’s June 28, 2012 order.
On the day before the September 10, 2013 hearing on the motion to compel, State Farm filed a response to the discovery requests. At the hearing, State Farm asserted that it did not know why the attorney previously assigned to the case failed to file a response while the discovery request languished for 12 months.1 However, upon receiving notice of the hearing on the motion to compel, the insurer contacted opposing counsel to obtain the discovery requests, although the requests were in the court file.
The trial court ultimately found that State Farm waived the right to object to the request for production by failing to comply with the original deadlines and the court ordered State Farm to produce the requested documents within ten days. On September 20, 2013, State Farm instead filed a Motion for Reconsideration and Rehearing, an Amended Response to Plaintiff’s Request for Production, and a Privilege Log. However, State Farm never sought a ruling on its motion for rehearing from the trial court. Rather, State Farm filed the instant Petition while rehearing was pending. By filing a Petition for Writ of Certiorari before obtaining a ruling on its motion for rehearing, State Farm is deemed to have abandoned its motion for rehearing and thus, failed to preserve its alleged claim of privilege raised in this Petition for Certiorari. See Rule 9.020(h), Fla. R. App. P.; King v. Blue Cross and Blue Shield of Fla., 132 So. 3d 1233 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D442a].
In the Petition, State Farm alleges that the trial court’s order departed from the essential requirements of the law in finding that State Farm waived its right to protect the claim file documents. Specifically, State Farm argues that the lower court’s order should be quashed because “there is no basis upon which the trial court could have validly entered the Production Order without addressing the existence of the attorney-client privilege and conducting an in camera inspection of the Claim File Documents.” There is ample authority standing for the proposition that “whether all or a portion of the matter sought to be discovered is protected-client privilege is a matter for the trial court’s determination.” United Services Auto. Ass’n v. Crews, 614 So. 2d 1213, 1214 (Fla. 4th DCA 1993); see also Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991) (noting that when the work product privilege is asserted, the court must hold an in camera inspection of the materials to determine the applicability of the privilege). However, State Farm failed to file a privilege log and never requested an in camera review. It was not until ten days after the hearing on the motion to compel and after the entry of the order compelling production that the insurer filed a privilege log and motion for reconsideration on grounds of work-product privilege. Rather than have that motion for reconsideration heard, however, the insurer filed the instant petition.
Thus, while we agree that the adjuster’s notes in a claim file are not discoverable if litigation is reasonably anticipated, the trial court could not have departed from the essential requirements of the law where State Farm failed to present the issue before the lower court. State v. Barber, 301 So. 2d 7, 9 (Fla.1974) (holding that “[a]n appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made”).
Consequently, the petition for certiorari is denied without prejudice to the Petitioners right to object to the disclosure of the entire claim file, and to have them submitted to the trial court for an in camera inspection.
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1The following exchange occurred on the record at the September 10, 2013 hearing:
STATE FARM: . . . With regards to the first 12 months, I don’t have any excuse. I don’t know why they weren’t responded to. I wasn’t the attorney on the file at that point; but our office was handling it.
. . .
. . .I received in July this case — in June from a previous attorney who left the firm. July 10th, our office was served with the notice of this hearing. I immediately, upon receiving the notice, contacted plaintiff’s counsel to receive the questions. I couldn’t respond to discovery without the actual questions.
THE COURT: You’re suggesting you didn’t even have the document?
STATE FARM: I don’t know if they were here on file originally. I assumed I’d see them on the docket. I didn’t see them in our file.
THE COURT: How many days would you like to —
STATE FARM: . . . I responded already yesterday, and I received them last week only. . .
. . .
THE COURT: . . . [T]en days to produce, not object, [sic] requests for production, not objecting to this point because you arguably waived that right by failing to comply with the original time deadlines.
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