28 Fla. L. Weekly Supp. 553b
Online Reference: FLWSUPP 2806WALD
Insurance — Personal injury protection — Discovery — Depositions — Motion for protective order preventing medical provider from deposing litigation adjuster regarding insurer’s deficient demand letter defense is granted where insurer has already responded to four sets of discovery on purely legal issue of deficient letter, no additional discovery is needed on issue, and provider has already deposed insurer’s corporate representative — No merit to argument that provider needs to depose adjuster regarding waiver and estoppel where provider did not plead waiver and estoppel as to demand letter defense
PGA CHIROPRACTIC HEALTH CENTER, P.A., Patient Phillip Waldrop, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, County Civil Division RD. Case No. 50-2016-SC-000809-XXXX-SB. June 25, 2020. Reginald R. Corlew, Judge. Counsel: Chad L. Christensen, for Plaintiff. Rachel M. LaMontagne, Ryan M. McCarthy, and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAWON DEFENDANT’S MOTION FOR PROTECTIVE ORDERAND PLAINTIFF’S AMENDED MOTIONTO COMPEL DEPOSITION APPEARANCE OF AFFIANT
THIS CAUSE came before the Court on June 18, 2020, on Defendant’s Motion for Protective Order and Plaintiff’s Amended Motion to Compel Deposition Appearance of Affiant; and, the Court having reviewed the motions and supplemental authority, heard the argument of counsel, and being otherwise fully advised in the premises, renders these findings of fact and conclusions of law:
Material Facts
Plaintiff filed this breach-of-contract action for personal injury protection (“PIP”) benefits on January 20, 2016. Subsequently, Allstate moved to amend its answer and affirmative defenses. Specifically, Allstate asserted affirmative defenses alleging Plaintiff’s pre-suit demand letter was deficient as a matter of law for failure to comply with section 627.736(10), Florida Statutes; therefore, Plaintiff failed to satisfy a condition precedent to filing this lawsuit. The Court granted this motion. Plaintiff never filed a reply to the amended answer and affirmative defenses.
Allstate moved for summary disposition or summary judgment as to Plaintiff’s deficient pre-suit demand on November 6, 2019. In support of its summary-judgment motion, Allstate filed the affidavit of Allstate litigation adjuster, Ashley Raison (“Raison Affidavit”). On January 9, 2020, long after Allstate had moved for summary judgment on the deficient-demand issue, the Court ordered the parties to schedule Allstate’s deficient-demand motion for summary judgment.
Yet on January 21, 2020, Plaintiff filed a motion, seeking a continuance or extension as to the deficient-demand hearing. It claimed a need for additional discovery.1 The record evidences a pattern of delay from Plaintiff — Plaintiff has moved for multiple extensions of time during the four-plus year duration of this case: (1) motion for extension of time to respond to proposal for settlement; (2) motion for extension of time to respond to Allstate’s discovery; (3) motion for extension of time to comply with order compelling better discovery responses to Allstate’s discovery; and, (4) motion to continue summary-judgment hearing and/or motion for extension of time to comply with order dated January 9, 2020 in order to complete discovery. The Court also issued a notice of lack of prosecution on March 6, 2019.
Ultimately, in furtherance of its claimed need for additional discovery, Plaintiff filed its amended motion to compel deposition appearance of affiant on May 14, 2020. Allstate filed its motion for protective order on May 29, 2020, asserting the deficient-demand issue is properly adjudicated as a matter of law, and that Allstate has already responded to four sets of written discovery in this case,2 including a request for admissions, interrogatories, and request for production on the deficient-demand issue.
The parties argued Allstate’s motion for protective order and Plaintiff’s amended motion to compel deposition appearance of affiant on June 18, 2020.
Conclusions of Law
A. The Court has broad discretion to enter a protective order.
Under Rule 1.280(c), Florida Rules of Civil Procedure, the Court may render a protective order to protect a party “from annoyance, embarrassment, oppression or undue burden or expense.” Here, a protective order is warranted to protect Allstate from annoyance and undue expense because: (1) Plaintiff has served and Allstate has responded to four sets of written discovery, including interrogatories, a request for production, and request for admissions on the deficient-demand issue — the precise issue on which Plaintiff seeks to depose Allstate’s affiant; (2) the issue of whether Plaintiff’s pre-suit demand letter is deficient for failure to comply with section 627.736(10), Florida Statutes is purely legal and no additional discovery is necessary; and, (3) Plaintiff already deposed Allstate’s Corporate Representative in 2017.
A trial court is given wide discretion in dealing with discovery matters, and unless there is a clear abuse of that discretion, the appellate court will not disturb the trial court’s order. Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D166a].
B. Whether Plaintiff’s pre-suit demand letter is deficient for failure to comply with section 627.736(10), Florida Statutes is properly adjudicated as a matter of law.
Allstate maintains that Plaintiff’s pre-suit demand letter is deficient as a matter of law for failure to comply with section 627.736(10), Florida Statutes.
Well-settled law, including rulings from this Court, provides this issue is properly resolved by summary judgment. See MRI Associates of America, LLC v. State Farm Fire and Casualty Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]; Lake Worth Emergency Chiropractic Center, P.A. (a/a/o Ryan Garter) v. State Farm Mutual Automobile Ins. Co., 22 Fla. L. Weekly Supp. 65a (15th Cir. Ct. (App.) (2014)); Fountain Imaging of West Palm Beach, LLC (a/a/o Charlotte Jennings) v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (15th Cir. Ct. (App.) 2007); Precision Diagnostic of Lake Worth, LLC (a/a/o Violette Timoleon) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 357a (Judge Corlew, Fla. 15th Jud. Cir. Cty. January 10, 2014).
C. Plaintiff’s motion to compel and the Raison Affidavit are devoid of any disputed issues of material fact to warrant a deposition on the purely legal deficient-demand issue.
i. The Raison Affidavit does not present a genuine issue of material fact.
The Raison Affidavit, filed in support of Allstate’s deficient-demand motion for summary judgment principally authenticates Allstate’s summary-judgment evidence. Exhibit A is identified as a true and accurate copy of Allstate’s policy. Composite Exhibit B is identified as true and accurate copies of the explanation of benefits forms and payout ledger. And Exhibit C is identified as a true and correct copy of Plaintiff’s demand letter received by Allstate. Other than authenticating the summary-judgment evidence, the Raison Affidavit sets forth background statements as to the affiant and Allstate and further recites information already in the record through pleadings and discovery.
Plaintiff seeks to depose Allstate’s affiant on an affidavit that presents no disputed issues of material fact. As the scope of the deposition would be limited to that affidavit, a protective order is warranted.
(ii.) Plaintiff’s motion to compel does not identify a disputed issue of material fact.3
Plaintiff’s motion to compel sets forth mere conclusory statements.
Specifically, Plaintiff’s motion to compel states, in pertinent part: (1) “The deposition of Defendant’s affiant is absolutely necessary in order to move foreard [sic] with dispositive motions”; (2) “That the Plaintiff is hereby requesting the assistance of the Court in setting the Deposition of the affiant, Ashley Raison for a date and time certain, to enable Plaintiff to continue to prosecute this claim, in order to get the Plaintiff’s medical benefits paid by the Defendant”; and, (3) “As a result of the Defendant’s failure to comply with Plaintiff’s reasonable request(s) to schedule the deposition, Plaintiff has been severely prejudiced and prevented from properly proceeding with this claim.”
Because Plaintiff fails to point to a disputed issue of material fact in the Raison Affidavit, or any tenable basis for the deposition, a protective order is proper. No testimony is necessary on this legal issue.
(iii.) Plaintiff did not plead waiver or estoppel as to Allstate’s deficient-demand affirmative defenses.
While not asserted in its motion to compel, at the June 18, 2020 hearing, Plaintiff argued the need to depose Allstate’s affiant based on the waiver and estoppel allegations in Plaintiff’s reply. However, although Plaintiff filed a reply to Allstate’s original answer and affirmative defenses, Plaintiff did not file a reply to Allstate’s amended answer and affirmative defenses. Thus, Plaintiff waived those allegations based on its failure to file a reply to Allstate’s deficient-demand affirmative defenses. A deposition on unpled allegations cannot create a genuine issue of material fact. See Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D145a] (affirming summary judgment, despite outstanding discovery, because the discovery would not have created a genuine issue of material fact as it was on defenses not pled).
The pleadings speak for themselves here — Plaintiff did not plead waiver and estoppel as to Allstate’s deficient-demand affirmative defenses.4 The Florida Supreme Court has held that a party is bound by its own pleadings. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowman Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988); Bank of Am. v. Asbury, 165 So. 3d 808, 809 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1230a] (“[l]itigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are.”); Advanced Chiropractic and Rehabilitation, Inc (a/a/o Aldwin Brana) v. Allstate Property and Casualty Ins. Co., 26 Fla. L. Weekly Supp. 771c (Judge Corlew, Fla. 15th Jud. Cir. Cty. November 6, 2018)).
It is error to permit a plaintiff to proceed on unpled issues. See Quality Type & Graphics v. Guetzloe, 513 So. 2d 1110, 1111 (Fla. 5th DCA 1987); Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865, 875 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D183a]. Plaintiff is bound by its pleadings; thus, it has not pled anything in response to the deficient-demand affirmative defenses.
D. Plaintiff cannot use discovery to thwart summary judgment.
The Court has already ordered Allstate’s deficient-demand motion for summary judgment be set and heard. Plaintiff is not permitted to thwart adjudication of summary judgment with discovery. Summary judgment may be granted, even though discovery has not been completed, when the future discovery will not create a disputed issue of material fact. See In re the Estate of Carlos Rumaldo Herrera v. Berlo Industries Inc., 840 So. 2d 272 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D217b] (rejecting the argument that summary judgment was error because discovery was not completed because “future discovery would not yield any new information that the trial court either did not already know, or needed to make its ruling.”). Here, the deposition of Allstate’s affiant would not yield any new information because the affidavit presents information already in the record.
Ruling
In making its ruling, the Court must take this 2016 case in the posture that it is in. Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED AND ADJUDGED:
1. Defendant’s Motion for Protective Order is GRANTED.
2. Plaintiff’s Amended Motion to Compel Deposition Appearance of Affiant is DENIED.
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1Plaintiff has already deposed Allstate’s Corporate Representative on January 12, 2017.
2Allstate has conceded relatedness and medical necessity, with the exception of CPT code A4595, which Allstate contends was improperly unbundled and thus non-compensable. Allstate has filed a summary-judgment motion on this issue.
3Plaintiff’s cited cases are inapposite. Additionally, the trial court orders from other cases that Plaintiff filed in support of its motion to compel are not binding. Plaintiff failed to explain the similarities between those cases and this one.
4The Court does not reach the merits of Plaintiff’s argument as to waiver and estoppel because they were not pled as to the deficient-demand affirmative defenses.
