22 Fla. L. Weekly Supp. 1117a
Online Reference: FLWSUPP 2210VIRTInsurance — Discovery — Interrogatories — Trade secrets — Prior opinions of appellate panels of circuit court, determining that trial courts erred in requiring medical provider to produce reimbursement rates it agreed to accept from other insurers without first determining whether information sought was trade secret, are not binding on appellate panel in instant case — Parties in cases are not identical due to involvement of different insureds/assignors — Trial court erred in requiring disclosure of reimbursement rates without making findings as to whether information is trade secret and whether insurer established reasonable necessity for information
VIRTUAL IMAGING SERVICES, INC., Petitioner, vs. UNITED AUTOMOBILE INS. CO., Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-204AP. May 19, 2015. A Petition for Writ of Certiorari from the County Court for Miami-Dade County, Judge Myriam Lehr. Counsel: Joseph Littman, for Petitioner. Michael J. Neimand, for Respondent.
(Before BERNSTEIN, HENDON, and MANNO SCHURR, JJ.)
(BERNSTEIN, Judge.) This case is very similar to three cases which were decided by appellate panels of this court in September and October of last year.1 See Virtual Imaging Services, Inc. a/a/o Raul Figuierora v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 421a (Fla. 11th Cir. Sept. 9, 2014); Virtual Imaging Services, Inc. a/a/o Victor Alvarez v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 184b (Fla. 11th Cir. Sept. 11, 2014); and Virtual Imaging Services, Inc. a/a/o Mayra Valdez De La Rosa v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 429a (Fla. 11th Cir. Oct. 3, 2014).
In each of those cases, and in the instant case, United Automobile Insurance Company (United Auto) sought production from Virtual Imaging Services, Inc. (Virtual) of reimbursement rates that Virtual agreed to receive from other insurers and payers for particular billing codes. In each case, Virtual petitioner objected, asserting, in part, a trade secret privilege. And, in each case, the trial court overruled the objection and ordered the petitioner to produce the reimbursement rates for a particular time frame without divulging the specific identity of the payer. In the three previous appeals, each panel found that the trial court failed to make the required determination of whether or not the information sought was a trade secret, and therefore quashed the order requiring production.
In “Petitioner’s Notice of Filing Binding Supplemental Authority and Suggestion of Mootness,” Virtual argues that the opinions of the previous three panels are binding upon the instant panel due to collateral estoppel. Virtual is incorrect. Among other requirements, collateral estoppel requires that the parties in the cases be identical. Husky Indus., Inc. v. Griffith, 422 So. 2d 996, 999 (Fla 5th DCA 1982). Although Virtual is the assignee in the three previous cases and the instant case, it was standing in the shoes of a different assignor in each case. Thus, the parties of the instant case and the other three cases are not identical, so collateral estoppel does not apply, and the other cases are not biding upon the current panel.
Instead of being binding upon a later panel, the decisions of previous panels should be considered by a later panel, but the later panel should exercise its independent decision. See State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994) (explaining that a circuit court sitting in its appellate capacity is required to consider all other decisions of the same circuit court when searching for precedents upon which to base its decision, but must make an independent decision).
Although the three previous decisions are not binding upon this court, we nevertheless find them persuasive. This court agrees with the previous opinions that the trial court was required to make a determination as to whether the documents in question were trade secrets. See Cabrera, 112 So. 3d at 733 (granting certiorari relief where the trial court “failed to make any findings as to whether any or all of the documents in question were protected by the trade secret privilege”); Gen. Hotel & Rest. Supply Corp. v. Skipper, 514 So. 2d 1158, 1159 (Fla. 2d DCA 1987) (concluding that the order departed from the essential requirements of law because it “ma[de] no determination as to whether or not the documents are trade secrets”).
In the instant case, the order entered by the trial court required Petitioner to:
“provide the reimbursement amounts for CPT Code 72148, 72141 for only the year of service, YEAR 2011, for each insurance provider/carrier listed in I3 and the uninsured and to avoid the potential for disclosure of any trade secret of proprietary information, [Petitioner] may simply identify said insurance provider by number and type of carrier, i.e., HMO#1 [reimbursement amount]; HMO#2___; PPO#1___; PPO#2___, etc. ”2
Like the orders on review in the previous cases, this order does not state specific findings on whether the information in the interrogatory request is a trade secret. Although the trial court order directed Petitioner to avoid disclosing “any trade secret or proprietary information,” it did not expressly set forth the trial court’s findings on the trade secret privilege, as required by Cabrera. The order also fails to make findings on whether Respondent established reasonable necessity for the requested information. See Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221, 222 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2503b]. As such, the trial court order does not satisfy the legal criteria, and represents a departure from the essential requirements of law.
Accordingly, we GRANT the petition for writ of certiorari and QUASH the production order on review. (HENDON and MANNO SCHURR, JJ., concur.)
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1In addition, there are dozens more similar cases pending which involve the same issue.
2The trial court ordered the Petitioner to produce reimbursement amounts for two CPT codes (72148 and 72141) when the respondent only requested reimbursement amounts for one CPT code (72141). This appears to be a scrivener’s error.
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