6 Fla. L. Weekly Supp. 738a
Insurance — Personal injury protection — Insured’s action against insurer — Discovery — Order requiring insurer to provide insured with amount of money it paid to its independent medical examiner over three-year period did not constitute departure from essential requirements of law — Order does not go beyond scope of permissible discovery — Discovery granted by trial court not so oppressive or burdensome as to constitute a departure from essential requirements of law
ALLSTATE INDEMNITY COMPANY, Petitioner, v. SHEILA WILKERSON, Respondent. 9th Judicial Circuit in and for Orange County. Case No. CI98-10509. Writ No. 98-67. August 31, 1999. Petition for Writ of Certiorari. Counsel: Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. Richard A. Simon, for Petitioner. Jeffrey B. Sexton, P.A. Jeffrey B. Sexton, for Respondent.
(Theotis Bronson, Frank N. Kaney, and Jeffords D. Miller, Judges.)
ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) Petitioner, Allstate Indemnity Company, seeks certiorari review of a discovery order rendered by the lower court on December 2, 1998. For the reasons expressed below, Allstate’s Petition for Writ of Certiorari is dismissed.
Respondent, Sheila Wilkerson, filed a first party complaint against Petitioner, Allstate, seeking to recover personal injury protection (“PIP”) benefits for injuries she sustained in an automobile accident. At issue was whether or not certain medical treatments and testing performed on Wilkerson were reasonable, necessary and related to the accident.
Wilkerson served Interrogatories on Allstate on June 17, 1998. Allstate filed an Objection to Interrogatories on July 31, 1998. In particular, Allstate objected to Interrogatory nine which stated the following:
Please provide the total annual amount of money (year by year) paid to the IME doctor hired by you to do the exam [of] the Plaintiff in this case from October 1, 1992 to the present, list any computer records, accounting records, ledgers, disks, writings, memos, reports, records, notes or any other documentation showing the amounts of the payments made to said physician including for each the name of the document, the number of pages and the date.
Wilkerson filed a Motion to Compel Discovery on September 25, 1998. The lower court entered an Order Granting Limited Discovery and Denying Certain Discovery without Prejudice on November 18, 1998. With respect to Interrogatory nine, the court ordered that:
defendant shall answer plaintiff’s interrogatory number 9 which requests that defendant provide the total amount of money (year by year) paid to the IME doctor hired by defendant in this case for a period of three (3) years prior to said doctor’s participation in this case, but shall not provide any list of computer records, accounting records, ledgers, disks, writings, memos, reports, records, notes or any other documentation showing the amounts of the amounts of the payments made to said physician. This ORDER GRANTING plaintiff’s motion to compel is made in accordance with Allstate Ins. Co. v. Boecher, 705 So. 2d [106] (Fla. 4th DCA 1998) and said response shall be provided to plaintiff’s counsel within twenty (20) days of the date of this ORDER. The defendant may provide an affidavit responding to interrogatory #9 indicating why it can or cannot be responded to.
Thereafter, Allstate moved for reconsideration of the Order and filed an Affidavit of Albert Fernandez, a front line processor with Allstate. Mr. Fernandez’ Affidavit detailed how difficult it would be for Allstate to respond to the discovery. The lower court entered an Order Denying Defendant’s Motion for Reconsideration on December 2, 1998. The lower court found that:
The supporting affidavit does not show why the requested information could not be obtained from Allstate’s copies of 1099 forms, or, if Dr. Cox was paid by Allstate’s vendor Concerta, why a simple request by Allstate of Concerta would not yield the information.
Allstate will answer plaintiff’s interrogatory No. 9 by either (1) stating the amount of money paid by Allstate or Concerta for Allstate to Dr. Cox for IME services rendered Allstate for 1997, 1996, and 1995; or (2) explaining in the interrogatory answer that 1099 forms do not exist, or if they were prepared, what efforts were made by Allstate or Concerta to find them; or whether Concerta did or did not have this information in its computer or hard copy records, and if it did, why the information was not forthcoming.
On December 29, 1998, Allstate filed the instant Petition for Writ of Certiorari seeking review of the lower court’s Order on Defendant’s Motion for Reconsideration and the underlying Order.
It is well established that the essential prerequisite to granting a petition for writ of certiorari is action by the lower court which constitutes a departure from the essential requirements of law that will cause material injury to the petitioner throughout the proceedings below, and for which there is no adequate remedy on appeal. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987). Ordinarily, orders granting discovery are reviewable by certiorari. See id. at 1099. However, the Florida Supreme Court has recently restated that certiorari review of orders granting discovery is “an `extraordinary remedy’ that `should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.’ ” Allstate Ins. Co. v. Boecher, 24 Fla. L. Weekly S187, S189 (Fla. April 22, 1999) (quoting Martin-Johnson, at 1099).
Allstate argues that the lower court’s order departs from the established boundaries of Florida Rule of Civil Procedure 1.280. Allstate argues that such departure requires it to compile non-existent information which it does not possess and which will have a chilling effect on the willingness of expert witnesses to perform medical examinations pursuant to section 627.736(7), Florida Statutes.
In support of its argument that the lower court has gone beyond the limits of Florida Rule of Civil Procedure 1.280, Allstate cites to Carrera v. Casas, 695 So. 2d 763 (Fla. 3d DCA 1997), Elkins v. Syken, 672 So. 2d 517 (Fla. 1996), and LeJeune v. Aikin, 624 So. 2d 788 (Fla. 3d DCA 1993). Allstate attempts to distinguish the case of Allstate Ins. Co. v. Boecher, 705 So. 2d 106 (Fla. 4th DCA 1998), upon which the lower court relied in granting limited discovery.
After Allstate filed the instant Petition, the Florida Supreme Court affirmed the Fourth District Court of Appeal’s opinion in Boecher and disapproved of the Third District Court of Appeal’s opinion in Carrera.1 See Allstate Ins. Co. v. Boecher, 24 Fla. L. Weekly S187 (Fla. April 22, 1999). The Florida Supreme Court concluded that “neither [its] decision in Elkins nor Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) prevents this type of discovery.” Id. at S187. The court held that “where the discovery sought is directed to a party about the extent of that party’s relationship with a particular expert, the balance of interests shifts in favor of allowing the pretrial discovery.” Id. at S188. The court also found that:
The information sought here would reveal how often the expert testified on Allstate’s behalf and how much money the expert made from its relationship with Allstate. The information sought in this case does not just lead to the discovery of admissible information. The information requested is directly relevant to a party’s efforts to demonstrate to the jury the witness’s bias.
Id. Thus, the lower court did not depart from the essential requirements of law in permitting this type of discovery.
The only other argument made by Allstate is that the discovery granted is so oppressive as to constitute a departure from the essential requirements of law that will cause Allstate irreparable harm. In order to warrant certiorari review, a trial court’s order must be a departure from the essential requirements of law that causes an irreparable injury. See Boecher at S189. In this case, Allstate has been ordered to provide Wilkerson with the amount of money it paid a physician, Dr. Cox, to perform independent medical examinations in 1995, 1996 and 1997. The lower court, in its Order Denying Defendant’s Motion for Reconsideration, provided three options for delivering that information:
(1) stating the amount of money paid by Allstate or Concerta for Allstate to Dr. Cox for IME services rendered Allstate for 1997, 1996, and 1995; or
(2) explaining in the interrogatory answer that 1099 forms do not exist, or if they were prepared, what efforts were made by Allstate or Concerta to find them; or
(3) whether Concerta did or did not have this information in its computer or hard copy records, and if it did, why the information was not forthcoming.
Allstate is required to provide three sums to Wilkerson. The lower court has directed Allstate to provide this information based upon 1099s that should have been prepared by either Allstate or its vendor Concerta for Dr. Cox. If those records do not exist or if Allstate is unable to locate them, Allstate may respond to the interrogatory by advising Wilkerson of that fact and what efforts were made to locate the records.
As stated previously, the lower court’s order permitting this type of discovery is not a departure from the essential requirements of law. Further, the lower court’s order is not so burdensome or oppressive that it constitutes a departure from the essential requirements of law causing irreparable harm as contemplated by Martin-Johnson and Boecher. Therefore, Allstate’s Petition for Writ of Certiorari shall be dismissed.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Petitioner, Allstate Indemnity Company’s, Petition for Writ of Certiorari is DISMISSED.
The Clerk of Court shall send a certified copy of this Order to the lower tribunal.
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1Actually, prior to the Florida Supreme Court’s opinion, the Fifth District Court of Appeals cited Boecher as authority. See State Farm v. Berg, 721 So. 2d 835 (Fla. 5th DCA 1998).
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