25 Fla. L. Weekly Supp. 812a

Online Reference: FLWSUPP 2509ACALInsurance — Personal injury protection — Discovery — Depositions — Scope of inquiry for deposition of insurer’s corporate representative will include prior global settlement of expired pre-suit demands — Insurer has waived any objection to scope of inquiry by failing to comply with time frames for providing deposition dates and objections to scope of inquiry — Insurer is compelled to produce claim file and information and documents related to settlement issue

STAND-UP MRI & DIAGNOSTIC CENTER, P.A., as assignee of Ashley Caliendo, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-21621-CONS. October 27, 2017. Shirley A. Green, Judge. Counsel: David Alexander and Stacey L. Schwartz, Orlando, for Plaintiff. Scharome Wolfe and Michael A. Alfonso, Deerfield Beach, for Defendant.

ORDER ON PLAINTIFF’S MOTION TO COMPELDEPOSITION OF DEFENDANT’S CORPORATEREPRESENTATIVE, PLAINTIFF’S MOTION TOCOMPEL RESPONSES TO PLAINTIFF’S SECONDREQUEST TO PRODUCE TO DEFENDANT, ANDDEFENDANT’S MOTION FOR PROTECTIVE ORDERAND OBJECTIONS TO PLAINTIFF’S SETTLEMENTDISCOVERY AND DEPOSITION REQUESTS

THIS MATTER having come before this Honorable Court on Plaintiff’s Motion to Compel the Deposition of Defendant’s Corporate Representative, Plaintiff’s Motion to Compel Responses to Plaintiff’s Second Request to Produce to Defendant, and Defendant’s Motion for Protective Order and Objection to Plaintiff’s Settlement Discovery and Deposition Requests and this Honorable Court having heard arguments of counsel on October 19, 2017 and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that:

1. Plaintiff’s Motion to Compel the Deposition of Defendant’s Corporate Representative is hereby GRANTED. Defendant shall coordinate the deposition(s) of its corporate representative(s) within ten (10) days of this Order to occur within thirty (30) days of this Order. Defendant shall designate, pursuant to Fla. R. Civ. P. 1.310(b)(6), its corporate representative(s) to testify as to all areas of inquiry set forth within Plaintiff’s Notice of Taking Deposition Duces Tecum that is attached to Plaintiff’s Motion to Compel the Deposition of Defendant’s Corporate Representative. Specifically, Defendant shall designate, pursuant to Fla. R. Civ. P. 1.310(b)(6), its corporate representative(s) to testify to the following areas of inquiry:

1. The settlement/non-settlement/pre-settlement of all expired pre-suit demands with Bradford Cederberg, P.A., dated before March 15, 2015, including:

A. The number and nature of the demands involved;

B. State Farm’s written responses to those demands prior to settlement;

C. The issues in the matters that were resolved;

D. The number of matters included in the settlement, to which State Farm had previously responded stating: the statute of limitations had run; benefits had exhausted; the policy did not provide coverage regardless of reason (policy expired, out of state policy, not our insured, no coverage for the loss, motorcycle policy);

E. The terms of settlement;

F. Payments made by State Farm in accordance with the Settlement of expired pre-suit demands;

G. State Farm’s absence of a response to Bradford Cederberg’s multiple correspondences regarding State Farm’s breach of the settlement agreement when the second payment was not made;

H. Any directions or communications given to employees of State Farm (whether in memo form, email, written correspondence, verbal or other) regarding potential resolution of any expired pre-suit demands with Bradford Cederberg, P.A., that were dated before March 15, 2015;

I. Any and all checks for benefits, interest, penalty or postage that were issued by State Farm and mailed to Bradford Cederberg, P.A. between January 1, 2015 and March 1, 2016 related to any expired pre-suit demands with Bradford Cederberg, P.A., that were dated before March 15, 2015;

J. Any and all documentation, in any form, between January 1, 2015 and the present that pertains in any manner to settlement or pre-settlement communications involving expired pre-suit demand matters with Bradford Cederberg, P.A., whether written, electronic or otherwise (including, but not limited to: emails, text messages, correspondence, voice mail messages or notes of any kind) between or among any of the following: Defendant, Defendant’s counsel (including any member of the Conroy Simberg Firm), Plaintiff and/or Plaintiff’s counsel.

2. Defendant’s affirmative defenses, Explanations of Review, receipt of bills and responses thereto, receipt of pre-suit demand(s) and response(s) thereto, payment or non-payment of the CPT code(s) at issue in the pleadings, the applicable policy of insurance, processing of Plaintiff’s bill(s) at issue, and all issues raised in the pleadings.”

2. Defendant’s has waived any and all objections to the scope of inquiry set forth above, including the general objections set forth in Defendant’s Motion for Protective Order and Objection to Plaintiff’s Settlement Discovery and Deposition Requests. Defendant failed to comply with the time frames listed in this Court’s March 27, 2017 Order Setting Trial and for Pre-trial Conference, for Referral to Mediation and Directing Attorneys or Parties to Hold a Preliminary Conference. First, Defendant failed to provide deposition dates for the deposition of Defendant’s corporate representative(s) within thirty (30) days in violation of this Court’s March 27, 2017 Order Setting Trial. This Court’s Order was clear that “[t]he failure to provide the dates may be considered bad faith for the purpose of attorney fees being awarded to the opposing party.” Second, Defendant’s failure to object to Plaintiff’s deposition scope within ten (10) days of receiving the scope of inquiry constituted a waiver of Defendant’s objections. This Court’s Order was clear that “[t]he failure of the opposing party to object within 10 days of receiving the scope of inquiry shall be considered a waiver of objections.” Third, pursuant to this Court’s Order Setting Trial, “any motions for protective order concerning the objection to the scope of inquiry shall be filed no later than 15 days of receiving the scope of inquiry.” Defendant’s untimely general motion for protective order was filed on June 12, 2017 in violation of this Court’s Order.

Plaintiff is hereby entitled to attorneys’ fees and costs associated in any way with Defendant’s violation of this Court’s March 27, 2017 Order Setting Trial, including but not limited to, Plaintiff’s Motion to Compel the Deposition of Defendant’s Corporate Representative, preparing for and attending the hearing on the Motion, and drafting proposed order. If the parties cannot reach an agreement on the amount of attorneys’ fees and costs associated with this Motion, the Court reserves jurisdiction to determine the amount of attorneys’ fees and costs. This Court reserves absolute jurisdiction to determine the amount of attorneys’ fees and costs regardless of the final outcome of this litigation.

3. Plaintiff’s Motion to Compel Responses to Plaintiff’s Second Request to Produce to Defendant is hereby GRANTED. Defendant’s objections to Plaintiff’s Second Request to Produce are waived. Plaintiff’s Second Request to Produce, numbers 1 through 9 read as follows:

“1. Any communications, correspondence or documentation (including but not limited to, e-mails, text messages, written letters, voice mails) between April 1, 2015 and the present between the Conroy Simberg law firm and Bradford Cederberg, P.A. pertaining to settlement of all expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.

2. A copy of State Farm’s response to the Plaintiff’s Notice of Intent to Initiate Litigation (Demand Letter) in this matter and any correspondence sent to Bradford Cederberg, P.A. thereafter regarding this claim.

3. Copies of any checks, wire of funds, electronic funds transfer or transfer of money at the direction of or from State Farm to Bradford Cederberg PA’s trust account between April 1, 2015 and the present involving any expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.

4. A complete copy of the claim file in this matter, including,

(a) a certified copy of the subject declarations page;

(b) a certified copy of the subject policy of insurance including any and all applicable endorsements, amendments and/or riders;

(c) copies of any and all estimates of property damage for any vehicles involved in the subject loss;

(d) copies of any and all photographs of property damage for any vehicles involved in the subject loss;

(e) copies of any and all medical bills and medical records received by the Defendant related to the subject claim;

(f) copies of any and all explanations of review/explanations of benefits (whether draft or final) issued by Defendant or any entity on Defendant’s behalf related to the subject claim for PIP benefits;

(g) copies of any and all forms completed by the assignor for the subject claim;

(h) copies of all computer/adjuster notes related to the subject claim up until the date of receipt of the pre-suit demand letter submitted on Plaintiff’s behalf for the treatment at issue in the subject claim;

(i) copies of any and all payments made, under any coverage, by the Defendant for the subject claim; and

(j) any other documents kept and maintained in the ordinary course and scope of Defendant’s business as it relates to the subject claim.

5. A copy of any and all checks and explanations of benefits issued to the Plaintiff or sent to Bradford Cederberg in this matter.

6. An up-to-date PIP Payout Sheet/PIP Log for the assignor in this case.

7. A copy of any and all documentation or evidence upon which Defendant relies to support any affirmative defenses raised in this matter.

8. A copy of any affidavits executed by any employee of the Defendant, or by any person at the Defendant’s request, or otherwise in the Defendant’s possession related in any way to the subject matter of this lawsuit.

9. Any and all spreadsheets or lists of cases provided to State Farm or its counsel by Bradford Cederberg, P.A. or sent by State Farm or its counsel to Bradford Cederberg, P.A. concerning expired demands dated before March 15, 2015 that had been served upon any State Farm entity and for which suit had not yet been filed.”

Defendant shall produce to Plaintiff the information/documentation sought within Plaintiff’s Second Request to Produce, specifically numbers 1 through 9, within fifteen (15) days of the date of this Order. If the information/documentation exists, Defendant must produce the requested documents to Plaintiff.

Plaintiff is hereby entitled to attorneys’ fees and costs associated in any way with Plaintiff’s Motion to Compel Responses to Plaintiff’s Second Request to Produce to Defendant, including but not limited to, drafting and filing of the Motion, preparing for and attending the hearing on the Motion, and drafting proposed Order. If the parties cannot reach an agreement on the amount of attorneys’ fees and costs associated with this Motion, the Court reserves jurisdiction to determine the amount of attorneys’ fees and costs. This Court reserves absolute jurisdiction to determine the amount of attorneys’ fees and costs regardless of the final outcome of this litigation.

4. Defendant’s Motion for Protective Order and Objection to Plaintiff’s Settlement Discovery and Deposition Requests is hereby DENIED.