27 Fla. L. Weekly Supp. 560a
Online Reference: FLWSUPP 2706PETRInsurance — Automobile — Windshield replacement — Discovery — Depositions — If insurer refuses to produce corporate representative able and willing to testify meaningfully about means of determining reimbursement for windshield replacement, it will be precluded from presenting evidence as to what it perceives to be “prevailing competitive price” — Insurer must produce corporate representative to testify concerning range of prices charged in geographic area — Documents — As to discovery requests to which insurer claims trade secret and attorney-client privileges, insurer is ordered to deliver materials for in camera inspection to determine applicability of privileges
GF GLASS ENTERPRISES, INC d/b/a CHARLIE’S AUTO GLASS INSTALLERS OF POMPANO, a/a/o Steven Petrison, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-012616 COCE (53). October 29, 2018. Robert W. Lee, Judge. Counsel: Emilio R. Stillo and Andrew Davis-Henrichs, Emilio Stillo P.A.; Mac Phillips, Phillips Tadros, P.A., for Plaintiff. Lindsey Trowell, Smith, Gambrell & Russell, LLP., for Defendant.
ORDER ON DEFENDANT’S OBJECTIONS TOPLAINTIFF’S RULE 1.310 DISCLOSURES
THIS CAUSE came before the Court on October 8, 2018 for hearing on Defendant’s Objections to Plaintiff’s Rule 1.310 Disclosures, and the Court, having reviewed the objections, Plaintiff’s response thereto and entire court file; having reviewed the relevant legal authorities; having heard argument of counsel; and having been sufficiently advised in the premises,
ORDERS AND ADJUDGES as follows:
Background
The Plaintiff is an automotive service provider who replaced Geico’s insured’s windshield. In exchange for the windshield replacement, Geico’s insured assigned his benefits under the policy to Plaintiff. The Plaintiff submitted its bill directly to Geico, and Geico paid less than the amount charged in reliance on its interpretation of the “Limit of Liability” language in the comprehensive portion of the policy1 and contends that it could have secured a cheaper price from a competent repair shop conveniently located to its insured at the time of loss. In other words, Geico’s position is that the cheaper price it allegedly could have secured is the “prevailing competitive price” and the most it had to pay under the policy.
Plaintiff disclosed the topics of corporate inquiry about which it intended to depose Defendant’s corporate representative, along with a list of documents it instructed Defendant to bring to the deposition. Defendant objected to certain areas of inquiry and to the production of certain categories of documents. The parties were able to agree on various objections, leaving the following to be determined by the Court: topics of inquiry stated at paragraphs 202, 213, 234, 265, 276, 287, and 29; and duces tecum requests identified at paragraphs 9, 12, 16, 27, 28, and 50. At the hearing, Defendant withdrew its objections to paragraphs 28 and 29 of the topics of inquiry.
Pertinent to the hearing held on October 8, 2018 are the Plaintiff’s intentions to seek corporate testimony and documents relating to Safelite.8 Plaintiff included numerous depositions, interrogatories and other materials which appear to establish that information regarding Safelite is reasonably calculated to lead to the discovery of admissible evidence, such as (1) Safelite Solutions, LCL provides data to Defendant as it relates to the “prevailing competitive price”; (2) Defendant previously disclosed Safelite Solutions, LLC as having knowledge regarding the payment of this claim; (3) Safelite AutoGlass is the first service provider identified by Defendant to an insured who contacts Defendant seeking a recommendation of service providers; (4) Defendant previously admitted that Safelite AutoGlass comprises 70% of the glass market; (5) Safelite AutoGlass is a direct competitor of Plaintiff; (6) Defendant previously identified Safelite AutoGlass in an affidavit as evidence to support that Defendant made payment at the “prevailing competitive price”; (7) Defendant and Safelite Solutions, LLC meet quarterly to discuss their “results” regarding pricing; (8) Safelite Solutions, LLC — not Defendant — maintains invoices from other shops which indicate what those other shops charge; (9) Defendant actually disclosed a representative of Safelite Solutions, LLC (Priscilla Jackson) as an expert witness on the issue of what constitutes a “prevailing competitive price” in another case yet Defendant’s corporate representative testified that she has no knowledge of that proposed expert’s compensation and whether such compensation was addressed by the contract between Defendant and Safelite Solutions, LLC entitled “2013 Provider Agreement between GEICO and Safelite Solutions, LLC” (the “Safelite Contract”)9.
Defendant’s position is that materials and information sought by duces tecum requests 9, 12, 16, 27, 28, and 29 are protected from disclosure as confidential, propriety and trade secret information, as are documents regarding and relating to Defendant’s relationship with SGR Network, Safelite Solutions, Inc., Safelite Group, Inc (and its related entities). This includes the Safelite Contract. Defendant also objected to the production of the “GEICO Glass Claims Student Manuel” on trade-secret grounds and to the production of “adjuster notes, diaries or log notes/entries prepared prior to Defendant’s receipt of the pre-suit invoice sent by Plaintiff to Defendant” on the basis of attorney-client privilege.
In Columbia Hospital (Palm Beaches) Ltd. Partnership v. Hasson, 33 So.3d 148 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1067a], the court held that a trial judge first has to determine whether information requested in discovery is protected from disclosure by privilege. In that case, the issue was the trade secret privilege. The first step is to determine whether the information requested actually constitutes privileged information, which may be resolved either by an agreement of the parties or an in camera inspection by the trial court. Hasson, 33 So.3d at 150. If it is determined that the information sought does not contain trade secrets, it may be produced subject only to ordinary discovery objections. If, however, it is determined that the information does indeed contain trade secrets, then the court must require the party seeking production to show reasonable necessity for the requested materials. Id. If the party seeking production makes such a showing, the trial court may properly compel the production of these materials but must also take such protective measures as are required to protect the trade secrets, such as entering a confidentiality order. Id. at 151.
Defendant also objected on trade secret grounds to Plaintiff’s requests for “[a]ny and all telephone scripts or other documents used by Defendant or provided to SGC Network, Safelite Solutions and/or Safelite Group, Inc. for use during a phone call or other communication with the insured or glass shop for the handling, servicing and administering (e.g., payments) of glass claims.” In its privilege log, Defendant identified that there is manual called “GEICO Glass Claims Student Manual.”
Conclusion
Based on the foregoing and all reasons stated on the record, it is hereupon
ORDERED AND ADJUDGED as follows:
1. The Court reserves ruling on topic No. 20 so Defendant may reconsider whether to maintain its objection. If Defendant chooses to do so and refuses to produce a corporate designee for deposition who is unable or unwilling to meaningfully testify about this topic, then it will be precluded from presenting evidence for any purpose as to what Defendant perceives to be the “prevailing competitive price.”
2. Defendant’s objection to topic No. 21 is sustained in part and overruled in part. Defendant is hereby ordered to produce a corporate representative prepared to testify about this topic, which is now limited to “prices charged” in the geographic area.
3. Defendant’s objections to topic Nos. 26 and 27 are overruled.
4. Defendant withdrew its objection to 28 and 29.
5. Since there is no agreement between the parties as to whether the Safelite Contract and the GEICO Glass Claims Student Manual constitute trade secrets, the Court will conduct an in camera inspection of the following materials in order to make that determination which are to be delivered to the Court’s chambers within 60 days from the date of this Order:
a. an unredacted copy of the Safelite Contract.
b. an unredacted copy of the “GEICO Glass Claims Student Manual” so the Court can determine whether it is a trade secret as it relates to duces tecum requests 16 and 2910.
c. unredacted copies of the information requested in duces tecum request 5011, but the production of same is not an admission that the services were reimbursed at 150% of NAGS12 as Defendant expressly represented to the Court that no claims were ever paid at that rate.
6. Since there is no agreement between the parties as to whether all adjuster notes made prior to Geico’s receipt of the subject invoice (duces tecum requests 513 and 1614) are protected from disclosure by the attorney-client privilege, the Court will conduct an in camera inspection of them in order to make that determination; the unredacted adjuster notes are to be delivered to the Court’s chambers within 60 days from the date of this Order.
7. If, after the in camera inspection, the Court determines that the requested documents are not privileged, they shall be produced subject only to ordinary discovery objections. If the Court determines that the information constitutes trade secrets or is protected from disclosure by the attorney-client privilege, it will hold a hearing to determine whether Plaintiff can show a reasonable need for the requested materials and, if applicable, whether a confidentiality order will be required before the ultimate production to Plaintiff.
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1Under Section III — Physical Damage Coverages, the Policy provides comprehensive coverage for losses, including broken windshields, that are not caused by a collision:
LOSSES WE WILL PAY
Comprehensive (Excluding Collision)
1. We will pay for each loss, less the applicable deductible, caused other than by collision to the owned or non-owned auto. This includes glass breakage.
No deductible will apply to loss to windshield glass.
The Policy also contains a clause stating that Geico’s liability for a loss:
2. Will not exceed the prevailing competitive price to repair or replace the property at the time of loss, or any of its parts, including parts from non-original equipment manufacturers, with other of like kind and quality and will not include compensation for any diminution of value that is claimed to result from the loss. Although you have the right to choose any repair facility or location, the limit of liability for repair or replacement of such property is the prevailing competitive price which is the price we can secure from a competent and conveniently located repair facility. At your request, we will identify a repair facility that will perform the repairs or replacement at the prevailing competitive price.
(Emphasis added).
2Topic of Inquiry 20 is “If the reimbursement rate has been contested by the Defendant, the methodology implemented by the Defendant in determining the appropriate reimbursement rate to which the Plaintiff is entitled, including the identity of all persons who were involved in the determination of what reimbursement rate was to be permitted for the charges of the Plaintiff in this matter.”
3Topic of Inquiry 21 is “The range of prevailing competitive prices charged in the area where the windshield was repaired.”
4Topic of Inquiry 23 is “All factors considered by the Defendant in its determination of the appropriate reimbursement rate, including any pricing garnered from any competent glass repair facility in the location of where the insured’s windshield was repaired.
5Topic of Inquiry 26 is “the methodology used to determine the ‘price we can secure’ and the ‘prevailing competitive price’ for a list of specific claims with corresponding checks provided by the Plaintiff.”
6Topic of Inquiry 27 is “The identification of all GEICO personnel who made or participated in the decision to reimburse or pay Florida windshield replacement claims at 110% to 150% of NAGS.”
7Topic of Inquiry 28 is “Charges submitted by windshield replacement and repair gacilities to GEICO from 2014 through 2017 for windshield replacement and repair services.”
8Plaintiff illustrated to the Court that there are two Safelite entities at issue, both of which fall under the same ownership umbrella: Safelite Solutions LLC and Safelite AutoGlass. Safelite Solutions is a third-party claims administrator who purportedly provides analysis and data as to the “prevailing competitive price” to Geico and, according to Geico, “compiles payment data and facilitates payments.” Safelite AutoGlass is an auto-glass service provider and a direct competitor of the Plaintiff.
9This contract was identified on Defendant’s privilege log in response to duces tecum requests 9, 12, 27 and 28 and was labeled “GEI-PETRISON-000070-000102.”
10Duces Tecum Request No. 29 seeks “[a]ny and all telephone scripts or other documents used by Defendant or provided to SGC Network, Safelite Solutions, Inc. and/or Safelite Group, Inc. for use during a phone call or other communication with the insured or glass shop for the handling, servicing, and administering (e.g., payments) of glass claims.”
11Duces Tecum Request No. 50 seeks “[c]opies of invoices, work orders and corresponding drafts for windshield replacement services whereby GEICO paid 150% of NAGS.”
12NAGS stands for National Auto Glass Specifications.
13Duces Tecum Request No. 5 seeks “[a]ll log and/or ledgers relating to Defendant’s insured and the date of loss in the Complaint, or other documents evidencing the amount of benefits padi by Defendant to or for the benefit of the insured’s windshield repair and/or replacement.”
14Duces Tecum Request No. 16 seeks “[c]opies of all adjuster notes, diaries or log notes/entries prepared prior to Defendant’s receipt of the pre-suit invoice sent by Plaintiff to Defendant.”
