26 Fla. L. Weekly Supp. 599a
Online Reference: FLWSUPP 2607SLOSInsurance — Personal injury protection — Attorney’s fees — Discovery — Insurer’s motion for protective order barring medical provider from deposing insurer’s corporate representative is granted where sole remaining issue is amount of fees owed to insurer, insurer has responded to all of provider’s other discovery requests, and provider has not demonstrated any reason for deposition — Provider’s request for unredacted attorney timesheets is denied where insurer is not seeking payment for redacted time entries — Provider is not entitled to discovery of insurer’s communications, invoices, and payments to counsel in other PIP cases or proposals for settlement served by insurer in other PIP cases — Motion to compel mediation is granted
SLOSSBERG FAMILY CHIROPRACTIC CENTER INC, Plaintiff/Petitioner v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant/Respondent. County Court, 15th Judicial Circuit in and for Palm Beach County. County Civil Division RD. Case No. 50-2015-SC-008881-XXXX-SB. August 23, 2018. Reginald R. Corlew, Judge. Michelle J. Kane, Kane Lawyers, for Plaintiff. Gladys Perez Villanueva, Shutts & Bowen LLP, Miami, for Defendant.
OMNIBUS ORDER
THIS MATTER came before the Court on: Allstate’s Motion for Protective Order as to Plaintiff’s Amended Re-Notice of Taking Deposition of Corporate Representative; Allstate’s Motion for Protective Order re: Location; Defendant’s Objections to Plaintiff’s Amended Re-Notice of Taking Deposition Duces Tecum; Defendant’s Motion to Compel Mediation; Plaintiff’s Motion to Compel Production and Overrule Objections to Supplemental Request for Production re: Defendants Motion for Fees and Costs and Motion in Limine; Plaintiff’s Motion to Compel Prompt Attendance at Deposition and for Sanctions; Plaintiff’s Motion for Extension of Time to Respond to Defendant’s Discovery, this 9th day of August, 2018, and the Court having considered the above motions , having heard arguments of counsel, and otherwise duly advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:Findings of Fact and Procedural History
Plaintiff filed this lawsuit arising out of a claim for Personal Injury Protection (“PIP”) benefits. The facts underlying this lawsuit were not in dispute, and, as pled in Plaintiff’s Complaint, there was only a pure legal issue for the Court to address. On August 25, 2016, the Court granted Plaintiff’s Motion for Summary Judgment and denied Defendant’s Cross Motion for Summary Judgment, based upon Orthopedic Specialists v. Allstate Insurance Company, 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a]. On August 26, 2016, the Court entered a Final Judgment in favor of Plaintiff. On August 31, 2016, Allstate filed its timely Motion for Rehearing. While Allstate’s Motion for Rehearing was pending, on January 26, 2017, the Florida Supreme Court decided Allstate Insurance Company v. Orthopedic Specialists [42 Fla. L. Weekly S38a], in favor of Allstate, upholding the decisions of the First, Second, and Third District Courts of Appeal, and holding that “Allstate’s policy provided legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements.”1
On March 29, 2017, the Plaintiff filed a voluntary dismissal, which is a legal nullity2. On April 28, 2017, Allstate filed its Motion to Strike Plaintiff’s Notice of Voluntary Dismissal Without Prejudice, its Motion for Entitlement to Attorney’s Fees and its Renewed Motion for Rehearing on this Court’s Final Judgment in favor of Plaintiff. On September 5, 2017, this Court entered an Order Granting Allstate’s Motion to Strike Plaintiff’s Notice of Voluntary Dismissal Without Prejudice, Granting Allstate’s Renewed Motion for Rehearing, and Entering Final Judgment in Favor of Allstate. In light of the entry of Final Judgment in favor of Allstate, on October 4, 2017, Allstate filed its Renewed Motion for Entitlement to Attorney’s Fees and to Tax Costs. This Court granted Allstate’s Renewed Motion for Motion for Entitlement to Attorney’s Fees and to Tax Costs reserving jurisdiction to determine the amount on April 13, 2018.
On April 5, 2018, Plaintiff served Allstate with its Supplemental Request for Production regarding Defendant’s Motion for Fees and Costs. Allstate served its Response to Plaintiff’s Supplemental Request for Production regarding Defendant’s Motion for Fees and Costs, providing all of Defendant’s timesheets for which Allstate seeks reimbursement. Over the course of this litigation, Plaintiff has served, and Allstate has answered, considerable discovery, including interrogatories, requests for production, and requests for admission.Conclusions of Law
1. Allstate’s Motion for Protective Order as to Plaintiff’s Amended Re-Notice of Taking Deposition of Corporate Representative
Plaintiff unilaterally noticed Allstate’s Corporate Representative for deposition. Allstate’s Motion for Protective Order is hereby GRANTED. Allstate has responded to Plaintiff’s interrogatories, requests for production, and requests for admission. Allstate has provided all timesheets for the time it is claiming from the date of service of the proposal for settlement until this Court found entitlement, which is consistent with Florida law. At the hearing, Plaintiff failed to demonstrate any reason for requesting the deposition of a corporate representative. The instant case has been litigated to Final Judgment; the sole remaining issue is the amount of fees owed to the Defendant; there is no testimony to be had by Allstate’s Corporate Representative. Therefore, this Court grants Allstate’s motion under Florida Rule of Civil Procedure 1.280(c).
2. Allstate’s Motion for Protective Order re: Location
Given this Court’s previous ruling, Allstate’s Motion for Protective Order re: Location is MOOT.
3. Defendant’s Objections to Plaintiff’s Amended Re-Notice of Taking Deposition Duces Tecum
Given this Court’s previous ruling, Defendant’s Objections to Plaintiff’s Amended Re-Notice of Taking Deposition Duces Tecum are MOOT.
However, this Court will address certain areas of discovery, which permeate Plaintiff’s requests, were argued at the hearing, and this Court’s rulings will apply throughout this Order.
UNREDACTED TIMESHEETS — Allstate produced redacted timesheets. Plaintiff seeks unredacted timesheets. Allstate redacted the timesheets and reduced its claim for fees by the redacted entries. Because Allstate is not seeking to have Plaintiff pay for time that has been redacted, the redactions are irrelevant to the Court’s determination of the amount of fees to award. Moreover, if there is a partial redaction, Plaintiff is free to object and challenge the entry.
ALL OF SHUTTS AND BOWEN’S COMMUNICATIONS, INVOICES, AND PAYMENTS BY ALLSTATE RELATING TO PIP CASES — Invoices and payments between lawyer and client in other cases are not at issue, irrelevant, and are attorney/client privileged communications. See Tumelaire v. Naples Estates Homeowners Ass’n, Inc., 137 So. 3d 596 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D935b] (identity of a client and payment of a fee appear to be within the ambit of statutory privilege and are not expressly or impliedly excluded exceptions — such matters are intended to be confidential and do constitute confidential communications).
PROPOSALS FOR SETTLEMENT — Plaintiff has sought production of all Proposals for Settlement in the amount of $125 and whether Allstate had different criteria for determining the amount of the proposal, depending on the amount at issue, the county or district, the type of service at issue, and any other criteria. Allstate filed the Proposal for Settlement at issue in this case when it motioned for fees and sought its enforcement. Florida Rule of Civil Procedure 1.442(i) provides that “evidence of a proposal or acceptance thereof is admissible only in proceedings to enforce an accepted proposal. . .” See also section 768.79(8), Fla. Stat. Any proposal for settlement that Allstate may have served on any other provider and the amount of that proposal is a confidential settlement negotiation, irrelevant to the instant case, and not discoverable. Moreover, any criteria that Allstate may have to determine whether it authorized the firm of Shutts & Bowen to serve a proposal for settlement is clearly subject to the attorney/client privilege and work product. See Butler v. Harter, 152 So. 3d 705 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2487g]. Finally, the issue of enforcement of the proposal for settlement was moot the day this Court granted entitlement based upon the objective legal standard for analyzing good faith offers and having heard all of Plaintiff’s challenges to the proposal for settlement. Id.
4. Defendant’s Motion to Compel Mediation
Allstate’s Motion to Compel Mediation is hereby GRANTED. The parties shall schedule and attend mediation within 20 days of this order. The physical presence of the parties and their counsel is mandatory; failure of a party to comply with physical attendance at mediation will subject that party to sanctions. The cost of mediation will be paid by the Plaintiff. Allstate will provide three mediators to the Plaintiff, and Plaintiff shall select one of the three names. Unless a different location is to be agreed upon by the parties, the mediation shall occur in Palm Beach County, Florida.
5. Plaintiff’s Motion to Compel Production and Overrule Objections to Supplemental Request for Production re: Defendant’s Motion for Fees and Costs and Motion in Limine
Plaintiff moves this Court to compel production of “all Proposals for Settlement (PFS) served by Defendant in other PIP suits six (6) months prior to, and six (6) months after the proposal for settlement was allegedly served in this case.” For the reasons set forth under the caption “PROPOSALS FOR SETTLEMENT” above, this Court DENIES Plaintiff’s Motion to Compel Production of any other proposal for settlement in any other case. Allstate’s objections to Plaintiff’s Request for Production are SUSTAINED.
Plaintiff also argues that it is entitled to unredacted timesheets and has filed a Motion in Limine to prohibit expert testimony as to redacted timesheets. Plaintiff may object to any partial redaction. See UNREDACTED TIMESHEETS above. However, for any redaction wherein Allstate has reduced its time, and, therefore, has not claimed the entry, the time is not before the Court. Accordingly, Plaintiff’s motion to compel unredacted timesheets is DENIED; Plaintiff’s motion in limine is GRANTED, in part and DENIED, in part. Allstate’s expert may not seek to have this Court award an amount for an entry that has been completely redacted — partial redactions have been previously addressed herein.
6. Plaintiff’s Motion to Compel Prompt Attendance at Deposition and for Sanctions
Plaintiff’s Motion to Compel Prompt Attendance at Deposition is MOOT, as this Court has granted Allstate’s Motion for Protective Order. This Court finds allegations contained in Plaintiff’s motion to be unsubstantiated and inconsistent with the history of this case. Plaintiff’s motion for sanctions is DENIED.
7. Plaintiff’s Motion for Extension of Time to Respond to Defendant’s Discovery
On the day when Plaintiff was required to respond to Allstate’s Request for Production, Plaintiff filed a Motion for Extension of Time to respond to Defendant’s Discovery and requested 45 additional days, which would be after the scheduled fee hearing date that had been specially set by the Court of September 7th, 2018. The Court has reviewed the Request for Production. Plaintiff’s Motion for Extension of Time is GRANTED, in part. Plaintiff shall have five (5) days from the date of this Order to respond to Defendant’s discovery.
8. Defendant’s Ore Tenus Motion to Limit Discovery, including Plaintiff’s Notice of Serving Supplemental Interrogatories to Defendant re: Defendant’s Motion for Attorney’s Fees and Plaintiff’s 2nd Supplemental Request for Production, filed August 7, 2018; and to compel Plaintiff to file its Objections to its timesheets.
During the hearing, Allstate’s counsel made an ore tenus motion to limit discovery and to compel Plaintiff to file objections to Allstate’s timesheets. Allstate’s ore tenus motion is GRANTED, under the specific facts and circumstances of this case, this Court finds that limiting any further discovery is warranted.
Prior to the hearing, Plaintiff filed Plaintiff’s Notice of Serving Supplemental Interrogatories to Defendant re: Defendant’s Motion for Attorney’s Fees and Plaintiff’s 2nd Supplemental Request for Production. Plaintiff’s Notice of Serving Supplemental Interrogatories to Defendant re: Defendant’s Motion for Attorney’s Fees and Plaintiff’s 2nd Supplemental Request for Production are hereby STRICKEN. The Court has considered, set forth its reasons herein, and finds that under Florida Rule of Civil Procedure 1.280 there is good cause to limit further discovery. The discovery sought is the same or substantially the same as has already been propounded and ruled upon herein.
Accordingly, it is further ordered that: unless specifically provided for herein, there shall be no further discovery propounded in this cause; and, Plaintiff is hereby ordered to serve its objections to Defendant’s timesheets within five (5) days of this Order.
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1Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973,974 (Fla. 2017) [42 Fla. L. Weekly S38a], reh’g denied, No. SC15-2298, 2017 WL 1130950 (Fla. Mar. 27, 2017).
2See Florida Rule of Civil Procedure 1.420(a); Gelinas v. Forest River, Inc., 931 So. 2d 970 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1449b] (filing of a voluntary dismissal after summary judgment hearing is a nullity, citing Stonely v. Moore, 851 So. 2d 905, 906 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1875a]); Kroener v. Florida Insurance Guaranty Association, 63 So. 3d 914 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1334a].
