23 Fla. L. Weekly Supp. 649a
Online Reference: FLWSUPP 2306VOSSInsurance — Automobile — Windshield repair — Discovery — Failure to comply — Sanctions — Where insurer shielded itself from discovery of information relating to its manner of determining “prevailing competitive price” with claims of trade secret privilege and then provided information on last day of discovery period, insurer is not permitted to use witnesses or reference exhibits as to “prevailing competitive price”
CLEAR VISION WINDSHIELD REPAIR a/a/o Richard Voss, Plaintiff, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-019856 COCE 53. May 11, 2015. Honorable Robert W. Lee, Judge. Counsel: Emilio R. Stillo and Mac Phillips, for Plaintiff. Vanessa Septien, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION IN LIMINE
THIS CAUSE came before the Court on May 11, 1015 for hearing on Plaintiff’s Motion in Limine to Preclude “Competitive Prevailing Price” witnesses and exhibits, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument; and been sufficiently advised in the premises the Court finds as follows:
1. The Plaintiff has pled a one count complaint alleging breach of contract for failure to pay in full for glass repair under a comprehensive/collision policy issued by the Defendant. The Defendant contends it is not in breach of contract because it has paid the “prevailing competitive price.” The subject policy defines “prevailing competitive price” as “the price we can secure from a competent and conveniently located repair facility.”
2. As of January 30, 2015, upon this Court’s issuance of the order of referral to mediation, this case was and is in a trial posture. The January 30, 2015 order also established a discovery cut-off of March 23, 2015.
3. In an effort to determine exactly how the Defendant purported to determine the price it could and allegedly did “secure from a competent and conveniently located repair facility”, the Plaintiff propounded written discovery in the form of interrogatories and document requests on or about February 2, 2015. The written discovery relates specifically to the witnesses and exhibits the Defendant anticipated calling at trial to testify as to Defendant’s policy defenses and all issues regarding the so-called prevailing competitive price1.
4. Shortly before the close of business on the last day of the discovery period (March 23, 2015), the Defendant disclosed over 30 exhibits and multiple witnesses regarding the sole issue in the case — the so-called “prevailing competitive price.”
5. The very next day, the Plaintiff filed the instant motion, and contends it is substantially prejudiced and deprived of its right to fairly conduct discovery as to the numerous eleventh-hour disclosed exhibits and witnesses. The Plaintiff further contends that this prejudice is compounded by the fact that the policy at issue contains no methodology whatsoever for determining the “competitive prevailing price” outside of the aforementioned language.2
6. The purpose of a motion in limine is to seek a pretrial ruling on evidentiary matters the “mere mention of which at trial would be prejudicial” and could not be cured. Advanced Chiropractic & Medical Center Corp. (a/a/o Marie Cham) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 161a (Broward County, Judge Robert W. Lee 2014) citing Buy-Low Save Centers Inc. v. Glinert, 547 So.2d 1283, 1284 (Fla. 4th DCA 1989).
7. If evidence is expected to be disclosed to the Court or jury it must be identified, disclosed and copies provided to the adverse party in accordance with discovery requests of the opposing party. Northup v. Acken, 865 So. 2d 1267 (Fla. 2004) [29 Fla. L. Weekly S37a]. The primary purpose of discovery under the rules of procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics. Grinell Corporation v. Palms 2100 Ocean Boulevard, Ltd. (Fla. 4th DCA 2006) [31 Fla. L. Weekly D726a]. The Defendant cannot assert a privilege as to particular documents, and then attempt to use the documents either as a sword or shield to defend its position in the case. Fabio Castaneda v. Citizens Property Insurance Company, 19 Fla. L. Weekly Supp. 875a (Broward County Court, Judge Robert W. Lee). As noted by Professor Ehrhardt:
When a party injects into litigation issues that necessarily require exploration of otherwise privileged matters, a waiver of that privilege will be implied. Fairness requires that a party not be permitted to affirmatively insert an issue into the case and then assert a privilege to protect information that is relevant.
8. The Defendant contends that Plaintiff raises his motion in limine as a “de facto sanction” to “punish GEICO for invoking the trade secret privilege to protect its confidential business information”. Conversely, the Plaintiff contends the opposite. The Plaintiff contends that GEICO is engaged in trickery, surprise and ambush. Plaintiff maintains if the information was “secret” and “confidential” during the discovery period the Defendant cannot provide the information after the discovery cutoff upon apparently deciding it is no longer “secret”. It is Plaintiff’s position that this is tantamount to “trial by ambush” which would greatly prejudice the Plaintiff in that Plaintiff was deprived of conducting discovery as to these witnesses and exhibits.
9. Florida courts have explained that the rules of discovery are intended to avoid surprise and “trial by ‘ambush.’ ” See Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981). In Binger, the Florida Supreme Court emphasized that the “search for truth and justice can be accomplished only when all relevant facts are before the judicial tribunal. Those relevant facts should be the determining factor rather than gamesmanship, surprise, or superior trial tactics.” Id. at 1313.
10. In Gonzalez-Valdes v. State, 834 So.2d 933, 935 (Fla. 3d DCA 2003) [27 Fla. L. Weekly D2100a], the Court held that “[d]ecisions as to the admissibility of evidence are within the discretion of the trial court and will not be reversed absent a clear showing the trial court abused its discretion” by taking action that is arbitrary, fanciful, or unreasonable. See, also, Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., Inc., 48 So. 3d 976, 995 (Fla. 3d DCA 2010) [34 Fla. L. Weekly D2578a]; White v. State, 817 So.2d 799 (Fla. 2002) [27 Fla. L. Weekly S291a]; Ray v. State, 755 So.2d 604 (Fla. 2000) [25 Fla. L. Weekly S96a]; Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
11. Here, the Defendant shielded itself from discovery of information that goes to the very heart of this case and is now attempting to use that same information to defeat the Plaintiff’s case at trial. When the Defendant refused to provide the discovery responses referenced above, it did so at its own peril and cannot now rightfully complain that it is barred from using its trade-secret shield as a sword. As a matter of fundamental fairness, it is therefore
ORDERED AND ADJUDGED THAT the Plaintiff’s Motion in Limine is granted. The Defendant is not permitted to utilize witnesses nor reference or introduce exhibits as to the “prevailing competitive price”.
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1For example, category number 30 of Plaintiff’s Request for Production seeks “[a]ny and all documents Defendant intends to rely on to establish the Defendant reimbursed the Plaintiff “the prevailing competitive price” amount of the service provided in this case.” The Defendant’s response indicated that it refused to supply such information because it “calls for confidential business information and privileged trade secrets” but agreed to produce certain responsive information “as discovery continues.” No such responsive information was produced in any sort of meaningful fashion. Additional examples are interrogatories 2 and 6, which seek the identity of witnesses about whom the defense knew had knowledge about the facts and issues in this case, including policy defenses. Again, no meaningful responses were supplied.
2The Plaintiff has provided the Court with the Honorable Donald McCathran Jr’s. opinion in Superior Auto Glass of Tampa Bay, Inc. (a/a/o Suzanne Renczkowski) v. GEICO Indemnity Company (Hernando County, 2010SC1084) [23 Fla. L. Weekly Supp. 151b]. In finding the policy ambiguous, Judge McCathran Jr. notes, “[t]here is nothing in the policy language explaining or setting forth how GEICO determines or specifically defines the ‘prevailing competitive price’ ”.
