23 Fla. L. Weekly Supp. 310b
Online Reference: FLWSUPP 2304FARMInsurance — Personal injury protection — Discovery — Reasonableness of charges — Trial court did not depart from essential requirements of law by ordering insurer to provide reports evidencing charges submitted by other providers to insurer and agreements used by insurer to assist in adjusting bills — Materials sought were not irrelevant — Work product privilege — Where trial court made it clear that it was prepared to conduct in camera review to screen for privilege and confidential materials once the materials were provided to court, and record indicates that insurer never availed itself and withdrew its motion seeking stay pending in camera review on day after submission, certiorari relief based on claim that order caused irreparable harm by requiring discovery of privileged materials would be premature — Certiorari review of claim that production is inappropriate because order required discovery from third parties is likewise premature because trial court has not had opportunity to craft protections suggested by insurer
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. WELLNESS ASSOCIATES OF FLORIDA, INC., Respondent. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division. Case No. 2015CA002437, Division AY. L.T. Case No. 2012SC014505. August 3, 2015. Petition for Writ of Certiorari from the County Court in and for Palm Beach County, Judge Reginald R. Corlew. Counsel: David C. Borucke, Tampa, for Petitioner. Harley N. Kane, Boca Raton, for Respondent.
(PER CURIAM.) The instant case involves a petition for writ of certiorari seeking relief from a trial court order compelling discovery. Petitioner, State Farm Mutual Automobile Insurance Company (“State Farm”), claims the trial court’s order requires discovery of irrelevant materials and otherwise requires discovery of privileged materials. For the reasons set forth below, the petition must be dismissed.Background
Respondent, Wellness Associates of Florida, Inc. (“Wellness Associates”), served as provider of “diagnostic testing” for Sergio Alvarez-Perez (“Insured”), who had been injured in an automobile accident. Insured had an insurance policy with State Farm and assigned the benefits under this policy to Wellness Associates. Wellness Associates charged State Farm for what it determined was the “reasonable value” of the services provided. State Farm paid Wellness Associates less than the amount requested, disputing that Wellness Associates charged a reasonable amount. Wellness Associates seeks to recover the remainder of its charged amount.
As part of discovery regarding this claim, Wellness Associates filed a Supplement Request for Production Re: Reasonableness. The request seeks reports — some from third parties — evidencing charges submitted by other providers to State Farm and agreements used by State Farm to assist in adjusting bills. State Farm objected to the discovery because, inter alia, the requested materials are privileged and irrelevant to the underlying litigation. The trial court overruled State Farm’s objections by order dated January 29, 2015. State Farm’s petition seeks relief from this order.Standard of Review
A non-final order that is not appealable under Florida Rule of Civil Procedure 9.130 is reviewable as a petition for writ of certiorari where the order is “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Bd. of Trustees of Internal Improvement Trust Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla. 2012) [37 Fla. L. Weekly S589a] (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) [29 Fla. L. Weekly S783a]). The final two prongs of this test essentially ask whether the essential requirements of the law cause “irreparable harm.” Id. at 455.Analysis and Legal Conclusions
State Farm raises two arguments in support of its petition for writ of certiorari. First, State Farm argues the trial court’s order is improper because it requires disclosure of irrelevant materials. Second, State Farm argues the trial court erred by requiring disclosure of privileged materials.
A. Whether the Trial Court’s Order Departed from the Essential Requirements of the Law by Requiring Disclosure of Irrelevant Materials.
State Farm challenges the trial court’s determination that the requested materials are relevant to the instant litigation. Trial courts possess broad discretion regarding discovery matters. Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1262 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2412a]. Discovery of irrelevant materials alone does not cause a litigant irreparable harm justifying certiorari relief. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 95 (Fla. 1995) [20 Fla. L. Weekly S217a]. Instead, certiorari quashing discovery of irrelevant materials is appropriate only where “it has been affirmatively established that such discovery is neither relevant nor will lead to the discovery of relevant information.” Id.
At issue in the instant litigation is whether the fee charged to State Farm by Wellness Associates is reasonable. Section 627.736(5)(a), Florida Statutes, allows for a physician to charge an insurer and injured party “a reasonable amount pursuant to this section for the services and supplies rendered.” State Farm objects to discovery of certain reports of charges it received and agreements it used to adjust certain bills as such rates are “irrelevant” to the reasonableness of a fee under section 627.736(5)(a). Section 627.736(5)(a) specifically notes the following considerations as relevant regarding a charge’s reasonableness:
[E]vidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state fee medical fee schedules applicable to automobile and other insurance coverages and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
(emphasis added).
The trial court did not depart from the essential requirements of law by ordering discovery of purportedly irrelevant materials. The language of section 627.736(5)(a) is extremely broad and the trial court retains broad discretion in ordering discovery. It cannot be said that evidence of what other providers have charged State Farm is wholly irrelevant to determine what constitutes a “reasonable” fee. No case “affirmatively establishes” the irrelevance of such materials and therefore certiorari relief is inappropriate on this point.
State Farm counters by arguing evidence of the amount charged by other providers is always irrelevant under section 627.736(5)(a). In support of this contention, State Farm cites to Progressive Express Insurance Co. v. St. Germain Chiropractic, 14 Fla. L. Weekly Supp. 758a (Fla. 9th Cir. Ct. 2007). Progressive Express is distinguishable from the instant case. There, the Ninth Judicial Circuit determined the amount actually paid by an insurer to other providers is “totally irrelevant in a suit seeking to recover personal injury protection benefits.” Id. Wellness Associates does not seek amounts paid by State Farm, but instead seeks amounts charged to State Farm by other providers. Under the broad text of section 627.736(5)(a), such discovery is relevant in determining whether a charged fee was reasonable. State Farm’s arguments otherwise are rejected.
B. Whether the Trial Court’s Order Caused Irreparable Harm by Requiring Discovery of Privileged Materials.
State Farm also argues certiorari is appropriate because the trial court has ordered discovery of material that is privileged as work product and is otherwise confidential. Compelling discovery of privileged materials without a showing of good cause is a departure from the essential requirements of law that causes irreparable harm. State Farm Fla. Ins. Co. v. Aloni, 101 So. 3d 412, 414-15 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2737a]. A petition for certiorari challenging a discovery order fails to establish irreparable harm, however, when it is “premature and speculative.” Poston v. Wiggins, 112 So. 3d 783, 786 (Fla. 1st DCA 2013) [38 Fla. L. Weekly D1104a]. A petition for certiorari is premature when a party seeks relief from a discovery order prior to a judge’s requested in camera inspection of any purportedly privileged materials. Id.; see also Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d 336 (Fla. 5th DCA 2005) [31 Fla. L. Weekly D55c] (dismissing petition for certiorari where petitioner sought relief from order requiring in camera inspection).
At the hearing on State Farm’s objections, the trial court stated the following:
I’m going to overrule the Defendant’s objection. If either party or defense — if defense wants to conduct an in camera inspection, they can come and provide me that information.
. . .
And then if there’s any confidentiality in there, we can obtain that through — we can get around that with confidentiality agreements, so that’s how the court’s going to rule.
The trial court’s order states that State Farm can submit the materials for in camera inspection. State Farm did in fact move to stay the trial court’s order pending an in camera review by motion dated February 23, 2015. State Farm subsequently withdrew this motion on February 24, 2015.
State Farm has failed to establish how it has suffered irreparable harm from the trial court’s order. The trial court made plain that it was prepared to conduct an in camera review of the materials to screen for privilege and potentially confidential materials, it only requested the materials be provided. The record indicates State Farm never availed itself of this opportunity and withdrew its motion seeking a stay pending in camera review one day after submission. Certiorari relief would be premature when the trial court has not reviewed the materials despite being ready to do so, as it is not even clear disclosure to Wellness Associates will be necessary.
State Farm also argues production is inappropriate because the trial court’s order requires discovery from a third party, Mitchell Medical. This argument mirrors the problem presented in the argument above, namely that it is premature in nature. As State Farm correctly notes, when discovery requires possible disclosure of a third-party’s confidential information, “appropriate measures” must be taken to protect the third-party’s privacy interests. Gulfcoast Surgery Ctr., Inc. v. Fisher, 107 So. 3d 493, 496 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D341a]. Certiorari regarding Mitchell Medical’s rights is inappropriate because the trial court has not had the opportunity to impose any protective orders because State Farm sought certiorari relief instead of submitting the materials to the trial judge for in camera review as requested. The trial court has not had the opportunity to craft the protections suggested by State Farm and therefore certiorari is similarly premature on this issue. Because certiorari is premature as to State Farm’s privilege arguments, the petition must be dismissed.
State Farm has failed to establish the sought-after materials are irrelevant to the instant case. State Farm has also failed to establish the trial court’s order compelling discovery causes irreparable harm where the trial court was prepared to conduct an in camera inspection of the materials. Accordingly, the Petition for Writ of Certiorari is DISMISSED. Wellness Associates’s Motion for Appellate Attorney’s Fees is provisionally GRANTED conditioned upon its prevailing in the lower court. (OFTEDAL, GILLEN, and BRUNSON, JJ., concur.)
