27 Fla. L. Weekly Supp. 667a
Online Reference: FLWSUPP 2708ARNAInsurance — Personal injury protection — Discovery — Appeals — Certiorari — Petitions seeking certiorari review of orders that merely require in camera review of documents and do not order production of those documents to opposing party are dismissed as premature
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. ALTAMONTE SPRINGS DIAGNOSTIC IMAGING, INC., d/b/a PREMIER MEDICAL IMAGING, as assignee of Ovidio Arnaiz, Respondent. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. EMERGENCY MEDICAL ASSOCIATES OF FLORIDA, LLC, as assignee of Margaret Meek, Respondent. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. MITCHELL R. GREENBERG, DC, INC. D/b/a INJURY TREATMENT SOLUTIONS AND/OR ALL BREVARD CHIRO/MED, as assignee of Trever Nutting, Respondent. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., as assignee of Brenda Bradley, Respondent. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FLORIDA HOSPITAL MEDICAL CENTER, as assignee of Nitza Jimenez, Respondent. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case Nos. 2018-CA-12249-O, 2018-CA-12252-O, 2018-CA-12256-O, 2018-CA-12259-O, 2018-CA-12311-O. September 13, 2019.
ORDER DISMISSING PETITIONSFOR WRIT OF CERTIORARI WITHOUT PREJUDICEAND DIRECTING CLERK TO CLOSE CASES
(JULIE H. O’KANE, J.) THIS MATTER came before the Court for consideration of the Petitions for Writ of Certiorari filed in 2018-CA-12249-O, 2018-CA-12252-O, 2018-CA-12256-O, 2018-CA-12259-O, and 2018-CA-12311-O;1 the Motions to Dismiss Petitions as Premature filed in these cases; and the Responses to the Motions to Dismiss filed in these cases. The Court finds as follows:
State Farm Mutual Automobile Insurance Company (State Farm), the Petitioner in all five Petitions, seeks certiorari review of trial court orders requiring it to submit to the court certain documents alleged to be privileged for an in camera inspection. Notably, the orders in these cases did not require production of the documents to the opposing party, just an in camera inspection. State Farm states that it is seeking certiorari review in an “abundance of caution” and “to avoid a later argument that the point of entry for such a challenge has passed,” as the trial court “expressly stated that it has not ruled that there has been any waiver of the attorney-client privilege by State Farm.” State Farm suggests that in the alternative to granting certiorari, this Court “should state expressly that this petition is premature,” and that State Farm may seek to protect its attorney-client privilege “at a later date, if and when the trial court squarely addresses the issue.”
According to Respondents’ Motions to Dismiss Petitions as Premature, dismissal of the instant Petitions as premature is warranted under Florida law. See Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d 336, 340 (Fla. 5th DCA 2005) [31 Fla. L. Weekly D55c] (certiorari review of order that requires submission of documents to trial court for in camera inspection is premature if no production to opposing party has been ordered). Respondents also point out that the trial court subsequently entered orders ruling that the documents must be produced, and that State Farm is presently seeking certiorari review of those orders in 2019-CA-423-O, 2019-CA-424-O, 2019-CA-425-O, 2019-CA-426-O, and 2019-CA-428-O. State Farm in its Responses to the Motions to Dismiss argues against dismissal, but in the alternative requests that any dismissal “should be without prejudice.” State Farm acknowledges that it has filed petitions in 2019-CA-423-O, 2019-CA-424-O, 2019-CA-425-O, 2019-CA-426-O, and 2019-CA-428-O with respect to the trial court’s subsequent rulings ordering production of the documents alleged to be privileged.
The Court grants the Motions to Dismiss Petitions as Premature and dismisses the Petitions filed in 2018-CA-12249-O, 2018-CA-12252-O, 2018-CA-12256-O, 2018-CA-12259-O, and 2018-CA-12311-O as premature, as they seek certiorari review of trial court orders that merely ordered an in camera review of certain documents and did not order production of those documents to the opposing party. As indicated, under Florida law, certiorari is not available in these circumstances. Leal, 917 So. 2d at 340. However, the Court’s dismissal is without prejudice to State Farm asserting its attorney-client privilege arguments with respect to the trial court’s subsequent rulings ordering the production of the documents. As also indicated, State Farm is presently seeking certiorari review of those subsequent rulings in 2019-CA-423-O, 2019-CA-424-O, 2019-CA-425-O, 2019-CA-426-O, and 2019-CA-428-O.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Motions to Dismiss Petitions as Premature filed in 2018-CA-12249-O, 2018-CA-12252-O, 2018-CA-12256-O, 2018-CA-12259-O, and 2018-CA-12311-O are GRANTED.
2. The Petitions for Writ of Certiorari filed in 2018-CA-12249-O, 2018-CA-12252-O, 2018-CA-12256-O, 2018-CA-12259-O, and 2018-CA-12311-O are DISMISSED WITHOUT PREJUDICE.
3. The Motions for Appellate Attorney’s Fees filed by Respondents in 2018-CA-12249-O, 2018-CA-12252-O, 2018-CA-12256-O, 2018-CA-12259-O, and 2018-CA-12311-O pursuant to section 627.428, Florida Statutes are CONDITIONALLY GRANTED, in an amount to be determined below and subject to the ultimate success of Respondents in the underlying cases.
4. The Clerk of the Court is directed to CLOSE 2018-CA-12249-O, 2018-CA-12252-O, 2018-CA-12256-O, 2018-CA-12259-O, and 2018-CA-12311-O. (DOHERTY and APTE, JJ., concur.)
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1These Petitions were reassigned to 2018 Appellate Panel G, the appellate panel for 2018-CA-12249-O, in the Court’s July 26, 2019 Order of Reassignment so that they travel together throughout the appellate process. See J.M.B. v. State, 776 So. 2d 353, 354 (Fla. 1st DCA 2001) [26 Fla. L. Weekly D354d] (consolidation for purposes of traveling together “simply means that the cases are assigned to the same panel of judges at the same time. This is employed when the cases are factually or legally related in some fashion but they remain separate for records and briefing, and is utilized to maximize this court’s judicial resources and ensure consistent outcomes.”).
