22 Fla. L. Weekly Supp. 423a
Online Reference: FLWSUPP 2204PEREInsurance — Personal injury protection — Discovery — Adjuster notes — Trial court departed from essential requirements of law by compelling production of adjuster notes in PIP action that did not involve allegations of bad faith and in which amount of damages was at issue
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. AUGUSTA PEREZ, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-408 AP. L.T. Case No. 11-13574 SP 25 (02). October 9, 2014. On Appeal from the County Court for Miami-Dade County, Florida, Don S. Cohn, Judge. Counsel: Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, and Narcy Fajardo, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A. for Petitioner. Virginia Best, of Lopez & Best, for Respondent.
(Before, SIGLER, ESPINOSA DENNIS, and CYNAMON, JJ.)
(ESPINOSA DENNIS, Judge.) State Farm seeks certiorari review of a non-final order requiring it to produce adjustor’s notes from its claim file in a first-party, breach of contract, non-bad-faith PIP case where the sole underlying issue in dispute is the amount of benefits to be paid. The parties are disputing the proper fee schedule and proper amount of reimbursement for treatment of the insured. The main issue presented in the instant appeal is whether the trial court departed from the essential requirements of the law by compelling the production of the documents in the claim file, including the insurance adjustor’s notes, where the underlying case was a PIP breach of contract action not involving allegations of bad-faith and where the amount of damages are at issue.
A certiorari petition must first pass a three-prong test before an appellate court can grant relief from an erroneous interlocutory order. Barker v. Barker, 909 So. 2d 333, 336 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1655a]. A Petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of trial, (3) that cannot be corrected on post judgment appeal.” Id. We find that the instant Petition satisfies the requirements of this test.
In review of the case at bar, the trial court is to be commended for conducting an in camera inspection to determine the nature of the documents sought to be produced, and whether they were subject to the work-product privilege, prior to ruling upon the production issue. State Farm Florida Ins. Co. v. Aloni, 101 So. 3d 412 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1701b]. However, the Third District Court of Appeal has specifically held that, in cases such as this, “notes in the claims file” are prohibited from disclosure. Castle Key Ins. Co. v. Benitez, 124 So. 3d 379, 380 n.1 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2226a]. Based upon this ruling, we must quash the order below which compelled the production of the notes. Upon our review of the documents ordered to be produced in the instant case, which were filed under seal, we confirm that they are indeed “Adjuster’s Notes” which are prohibited from discovery in cases such as the instant case.
For these reasons, the Petition for a Writ of Certiorari is GRANTED. Accordingly, we QUASH the October 17, 2013 Order Requiring Production of Documents Following In Camera Inspection. (SIGLER and CYNAMON, JJ., concur.)
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