25 Fla. L. Weekly Supp. 73a
Online Reference: FLWSUPP 2501OJEDInsurance — Personal injury protection — Discovery — Depositions — Where deposition testimony of insurer’s litigation adjuster will have no bearing on issue of whether demand letter satisfied statutory condition precedent, and facts in adjuster’s affidavit authenticating claim file and demand letter are not currently in dispute, requested deposition of adjuster is unnecessary prior to hearing on motion for summary judgment based on invalid demand letter
MILLENIA CHIROPRACTIC, LLC, a/a/o Sergio Ojeda, Jr., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC-007399-O. March 8, 2017. Faye L. Allen, Judge. Counsel: Richard Oliver Hale, IV and Jacqueline M. Bertelsen, for Plaintiff. Jarod L. Gilbert, Andrews & Monno, P.A., Tampa, for Defendant.
ORDER ON PLAINTIFF’S MOTION TOCOMPEL DEPOSITION
THIS CAUSE having come before this Honorable Court on February 23, 2017 on Plaintiff’s “Motion to Compel Deposition,” (dated 10.11.2016) and this Court having heard arguments of counsel and being otherwise fully advised, finds as follows:
Millenia Chiropractic, LLC (“Plaintiff”) has brought this breach of contract action against State Farm Mutual Automobile Insurance Company (“Defendant”) for Personal Injury Protection (“PIP”) benefits under an insurance policy providing such benefits to Sergio Ojeda, Jr. (“Insured”). Defendant has denied the material allegations in Plaintiff’s Second Amended Complaint and has asserted its affirmative defenses which include an assertion that Plaintiff has failed to comply with Fla. Stat. §627.736(10).
On September 23, 2014, counsel for Plaintiff took the deposition of Joffer Faria. At the time of the deposition, Mr. Faria was Defendant’s litigation adjuster. At some point after said deposition, a new litigation adjuster named Kimberly Stamey replaced Mr. Faria. On August 19, 2016, Ms. Stamey executed an affidavit essentially authenticating claim file documents in support of “Defendant’s Motion for Summary Judgment (Invalid Demand Letter).” Her sworn testimony included the authentication of the purported demand letter that is the subject of Defendant’s aforementioned motion.
Prior to scheduling the hearing on “Defendant’s Motion for Summary Judgment (Invalid Demand Letter),” counsel for Plaintiff requested the deposition of Ms. Stamey. Counsel for Defendant objected, but agreed that it would be procedurally proper to have Plaintiff’s Motion to Compel Deposition heard first in order to resolve the discovery dispute. At hearing, counsel for Plaintiff argued that Plaintiff should be allowed to depose Kimberly Stamey because she provided sworn testimony in the form of an affidavit. Counsel for Plaintiff further argued that certain portions of Ms. Stamey’s affidavit would not be admissible in evidence at the upcoming summary judgment hearing. On the other hand, counsel for Defendant argued that Ms. Stamey’s affidavit simply authenticates various claim file documentation which includes the purported demand letter at issue. Counsel for Defendant further asserted that the basic facts surrounding the purported demand letter (i.e., receipt date, true and accurate copy, etc.) are not in dispute rendering this a legal matter obviating the need for a second deposition prior to “Defendant’s Motion for Summary Judgment (Invalid Demand Letter).” This Court agrees with the Defendant’s position in this case.Analysis
In general, parties may obtain discovery regarding any non-privileged matter so long as it is relevant. Fla. R. Civ. P. 1.280(b)(1). However, “where the whole dispute involves an essentially legal question and where the basic facts are not in issue, [a party] should not be involuntarily deposed.” Hurley v. Werly, 203 So.2d 530 (Fla. 2nd DCA 1967).
The issue presented in this case was brought before the Honorable Gaston Fernandez in Riverview Family Chiropractic Center, P.A. (a/a/o Sherri Chapman) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 470a (Fla. 13th Cir. Cty. Ct. 2014). In Riverview, the defendant scheduled a motion for summary judgment challenging the legal sufficiency of the plaintiff’s purported demand letter. The plaintiff sought to have the litigation adjuster for the defendant insurer deposed prior to the summary judgment hearing. Judge Fernandez followed Hurley’s rule of law, and held that the “issue of whether Plaintiff’s purported pre-suit demand letter complies with Fla. Stat. § 627.736(10) is just that — a legal issue.” See also Alliance Spine & Joint I, Inc. (a/a/o Paul Volcy) v. USAA Casualty Insurance Co., 24 Fla. L. Weekly Supp. 555c (Fla. 1lth Cir. Cty. Ct. 2016) (holding that trial courts and appellate courts across the state have imposed a duty on medical providers to strictly comply with Fla. Stat. § 627.736(10)). Riverview further held that the deposition testimony of the insurer’s representative will have no bearing on whether the purported demand letter complies with Florida law.
In the case at bar, Defendant scheduled its motion for summary judgment regarding the legal sufficiency of Plaintiff’s purported demand letter for hearing on March 15, 2017. At this hearing, the Court will determine whether Plaintiff’s purported demand letter strictly complies with Fla. Stat. § 627.736(10). See Medical Therapies, LLC (a/a/o Sonja Ricks) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 34a (Fla. 9th Cir. App. Ct. 2014). This legal issue, as presented to this Court, does not require deposition testimony of Defendant’s litigation adjuster because the basic facts surrounding the issue are not in dispute. For example, there has been no evidence, argument, or even suggestion that the purported demand letter attached to Ms. Stamey’s affidavit is not a true and accurate copy. By way of another example, there has been no evidence, argument, or even suggestion that the parties dispute the mailing date or receipt date of the purported demand letter that will be debated in the forthcoming summary judgment hearing. As such, the basic facts presented in Ms. Stamey’s affidavit are not currently in dispute rendering the requested deposition wholly unnecessary.1 Should this case proceed to trial or should Ms. Stamey offer additional testimony, Plaintiff may very well be entitled to depose Ms. Stamey. However, this case is not currently set for trial, nor has there been any additional testimony filed with this Court. It is therefore ORDERED AND ADJUDGED that Plaintiff’s “Motion to Compel Deposition” (dated 10.11.16) is denied without prejudice.
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1By no means does this ruling preclude Plaintiff from arguing at the March 15th hearing that there are issues of material fact rendering summary judgment inappropriate.
