26 Fla. L. Weekly Supp. 119a
Online Reference: FLWSUPP 2602EHRInsurance — Personal injury protection — Discovery — Depositions — Motion to compel deposition of insurer’s corporate representative is granted — Insurer is not permitted to depose medical provider’s representative where, in view of documentation and records already in possession of insurer, deposition is not relevant and would not tend to lead to discovery of admissible evidence
PHOENIX EMERGENCY MEDICINE OF BROWARD, LLC, as assignee of Victoria Ehr, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-SC-190-O. January 23, 2018. Faye L. Allen, Judge. Counsel: David B. Alexander, Orlando, for Plaintiff. Randall A. Wainoris, Tampa, for Defendant.
ORDER ON DECEMBER 12, 2017 HEARING
THIS MATTER having come before this Honorable Court on 1) Plaintiff’s Motion to Compel the Deposition of Defendant’s Corporate Representative Pursuant to Fla. R. Civ. P. 1.310(b)(6), 2) Plaintiff’s Motion for Protective Order, and 3) Defendant’s Motion to Compel Deposition of Plaintiff, Motion for Protective Order as to the Deposition of Defendant’s Representatives and Motion to Determine Sequence of Depositions and this Honorable Court having heard arguments of counsel on December 12, 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 Pursuant To Fla. R. Civ. P. 1.310(b)(6) is hereby GRANTED. The deposition of Defendant’s Corporate Representative pursuant to Fla. R. Civ. P. 1.310(b)(6) (scope of inquiry attached as Exhibit “A” to Plaintiff’s Motion to Compel), shall be coordinated within thirty (30) days from the date of this Order and shall occur within one hundred and twenty (120) days from the date of this Order. The Defendant’s Corporate Representative shall bring to the deposition documents requested within the duces tecum portion of the Notice of Taking Deposition.
2. Plaintiff’s Motion for Protective Order is hereby GRANTED. The Defendant is not permitted to take the deposition of Plaintiff’s representative in this matter as same is not relevant and would not tend to lead to the discovery of admissible evidence. “[N]othing in subsections (6)(b) or (c) contemplates requiring a PIP medical provider to submit any of its representatives to deposition, and the trial court erred by ordering Shands to make a designated corporate representative available for deposition.” State Farm Mutual Auto. Ins. Co. v. Shands Jacksonville Medical Center, Inc., 210 So. 3d 1224 (Fla. 2017) [42 Fla. L. Weekly S176a] citing Shands Jacksonville Medical Center, Inc. v. State Farm Mutual Automobile Insurance Co., 213 So. 3d 372 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1447a]. See also Lorraine v. Enterprise Leasing Company of Orlando, LLC, 22 Fla. L. Weekly Supp. 943a (Ninth Jud. Cir., Orange County, December 8, 2014). Further, in granting Plaintiff’s Motion for Protective Order, this Court considered the documentation and medical records already in the possession of Defendant, including but not limited to, the Plaintiff’s medical bill (CMS 1500 form) for the date of service at issue. Box 24.c., of the CMS 1500 form submitted to Defendant is appropriately marked. Box 24.c. is entitled “EMG” and is described within the “Instructions for Completing the CMS 1500 Claim Form,” as an “Emergency Indicator.” Further, said instructions set forth that “EMG” is an abbreviation for “Emergency” and that “ ‘EMG’ identifies if the service was an emergency.” In addition, said instructions for Box 24.c. further state in part:
“Check with payer to determine if this information (emergency indicator) is necessary . . . The definition of emergency would be either defined by federal or state regulations or programs, payer contracts, or as defined in 5010A1.” (emphasis added).
First, without question, it is Defendant’s (payer’s) position that an “emergency indicator” is necessary pursuant to the policy of insurance at issue. Next, the payer contract in this litigation is Defendant’s policy of insurance at issue. Examining said policy of insurance, it is clear that Defendant has defined “emergency” by the use of the phrase “emergency medical condition.” No other definition of “emergency” is set forth within the contract. Even if Defendant could argue that the above creates an ambiguity in the policy of insurance, as pointed out by counsel for Plaintiff at the hearing, “any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943, 949-950 (Fla. 2013) [38 Fla. L. Weekly S511a].
3. Defendant’s Motion to Compel Deposition of Plaintiff, Motion for Protective Order as to the Deposition of Defendant’s Representatives and Motion to Determine Sequence of Depositions is hereby DENIED. If Defendant questions the authentication of documentation, Defendant may propound Interrogatories and/or Request for Admissions upon Plaintiff regarding authentication of documentation.
