25 Fla. L. Weekly Supp. 382a
Online Reference: FLWSUPP 2504WAGNInsurance — Personal injury protection — Discovery — Depositions — Motion for protective order regarding deposition of pre-litigation adjuster is granted where insurer has pending motion for summary judgment on issue of whether medical provider submitted statutorily compliant demand letter — If motion for summary judgment fails, protective order will be lifted
THE CENTER FOR BONE & JOINT DISEASE, P.A., a/a/o William Wagner, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 16-CC-007369, Division M. May 25, 2017. Herbert M. Berkowitz, Judge. Counsel: Stephen Cofer, for Plaintiff. Stephen B. Farkas, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER
THIS CAUSE having come before the Court, upon the Defendant’s Motion for Protective Order and Motion to Convene Case Management Conference and the Court having been duly advised on the premises, at a hearing on March 7, 2017, with attendance by the Counsels of record for each party, it is HEREBY ORDERED AND ADJUDGED as follows:
1. According to the Plaintiff’s initial Complaint, the assignor, William Wagner, was involved in a motor vehicle crash on January 30, 2013. Plaintiff also claimed that $7,349.58 was owed for dates of service August 31, 2011 through April 11, 2013.
2. Plaintiff subsequently amended its Complaint, to specify that the date of loss was January 30, 2013, and claimed that $2,695.18 was owed for dates of service February 19, 2013 through April 11, 2013.
3. Defendant then filed its Answer with Affirmative Defenses asserting, inter alia, that the Plaintiff failed to submit a statutorily compliant pre-suit demand letter and thus failed to satisfy conditions precedent. Defendant then filed a Motion for Summary Judgment For Failure to Serve a Statutorily Compliant Pre-Suit Demand (hereinafter Defendant’s Motion for Summary Judgment) on November 17, 2016 regarding the sufficiency of the Plaintiff’s demand letter.
4. Per argument of Defendant’s counsel, the basis for Defendant’s Motion for Summary Judgment was that the demand letter at-issue included dates of service that pre-dated the January 30, 2013 date of loss, and stated an amount due in excess of the $10,000.00 policy limits.
5. Shortly after filing its Motion for Summary Judgment, Defendant tried to coordinate a hearing on same, however Plaintiff objected and claimed that they were unable to agree on a hearing date for the Motion for Summary Judgment until the deposition of the pre-litigation adjuster is set. Defendant then filed the subject Motion for Protective Order and Case Management Conference, arguing that the deposition of its adjuster is irrelevant under these facts and only issues of law remained.
6. Based on the facts of this case, the Defendant’s Motion for Protective Order is GRANTED. The protective order, as to the deposition of Defendant’s adjuster, will remain in place until such time as the Defendant’s Motion for Summary Judgment is heard.
7. Furthermore, the hearing on Defendant’s Motion for Summary Judgment is to take place no later than sixty (60) days from today’s date of March 7, 2017. If the Defendant is unsuccessful in their Motion for Summary Judgment, then the protective will be lifted and the Plaintiff can take the deposition of the Defendant adjuster.
