IMPERIAL FIRE AND CASUALTY INS CO

v.

FLORIDA SERVICES & SOLUTIONS CORP., A/A/O ANA DIAZ

This cause having been brought to this Court by appeal, and after due consideration the court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this COURT attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the STATE OF FLORIDA. Lower Tribunal Case Nurnber(s): 12—008461—CC 25 WITNESS the Honorable Abby Cynamon, Administrative Judge oftheAppellate Division ofthe Circuit Court of the Eleventh Judicial Circuit of Florida and the seal ofthe said Circuit Court at Miami, this 3RD day of February , 2015. A True Copy i l\ _.:<‘i’3lerk"6fQ0H?ff;$,§\ A 2v.' ‘-,‘\ '/3,, . , ,, _ ‘,\,.,V I \ By. l.~U_l._';. lsél A‘-'4 ‘. §’J__a aniline, as ar _ '~»:D. TY ‘~.;.;v; - ,_;~_r_,,.- 3" . I

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q‘§“-1~\,_'.( ‘\_;‘_.¢ . Mandate rev. 10/22/2008 [*2] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION,

AND IF FILED, DISPOSED OF. IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY,

FLORIDA

APPELLATE DIVISION

CASE NO.l3- 318 AP LOWER COURT CASE NO. 12 -08461 CC 25

IMPERIAL FIRE AND CASUALTY

INSURANCE COMPANY, Petitioner, v. OPINION

FLORIDA SERVICES & SOLUTIONS

CORPORATION a/a/o ANA DIAZ, Respondent. / 5., V g Opinion filed; \(,,‘ °)_Q\5 An appeal from the County Court of the Eleventh Judicial Circuit, Gloria Gonzalez~Meye Douglas Stein, Esq. of Seipp, Flick & Hosley for Petitioner Marlene Reiss, Esq. of Law Offices of Marlene Reiss, Esq. P.A. for Respondent Before ANTONIO MARIN, LISA WALSH AND ABBY CYNAMON, JJ.

WALSH, J

* * * * *

GHV

no r,J..

HQJ

(lflllrl “'7-Q *\a ~-Ci 21.1233? Imperial Fire And Casualty Insurance Company (Imperial), petitions this Court for writ of certiorari to quash the trial court’s order prohibiting the production of and access to certain employment records of its insured, Ana Diaz. This Court finds the trial court's order denying disclosure of the claimant’s employment records did not constitute a departure from the essential requirements of law and will not irreparably harm Imperial's claims or defenses. Accordingly, certiorari is unwarranted, this Court denies the writ and remands this matter for further proceedings consistent with this opinion.

JACQUELINE

ABU-NASSAR [*3] ' Imperial Fire & Casualty lg) v Fla. Services & Solution Corp Case No. 13-318 AP Background Florida Services & Solution Corporation (Florida Services) filed a lawsuit against Imperial for failure to pay PIP benefits for medical services rendered to Ana Diaz, Imperial’s insured. During the course of the PIP litigation, Imperial served the insured's employer, a nonparty, with a Notice of Production, which sought “any and all employment records, applications, W-2 forms, evaluations, incident reports, disciplinary actions, worker’s compensation information, training records, pay records, total hours worked for the months of July, 2011 and April 2013, and other employment information regarding the insured, Ana Diaz." Florida Services objected to the Notice of Production. At the hearing, Imperial asserted that the information sought was relevant to Ms. Diaz’s credibility as to the time of the accident based on the hours she actually worked.‘ In deposition, Ms. Diaz testified that the accident occurred an hour and a half to two hours after the reported time of accident. Imperial argued that the employment records could be relevant to prove that the insurance claim was false based on a staged accident. The trial court found that the information sought was not probative, especially where the insured was not making any claim for lost wages. The court further noted that the time discrepancy cited by Imperial as grounds for the production was negligible and did not justify the disclosure. The trial court sustained Florida Service’s objection, thereby denying the request for production. The Petition In support of its petition, Imperial argues that the employment records are necessary to establish Imperial’s theory of the case, i.e., that the accident may have been staged during an unaccotmted for 2‘/2 hours. Imperial further claims that the requested discovery, if denied, would materially impair the pending declaratory judgment counterclaim and affirmative defenses concerning coverage of fraudulent claims. Therefore, the trial court should have permitted access to the employment records. The flaw in Imperia1’s position is that Imperial’s affirrnative defenses and counterclaim for declaratory relief do not plead a claim for fraud for a staged accident. Rather, Imperial’s affirmative defenses and counterclaim allege material misrepresentation for Ms. Diaz’s rnisstaterncnts in her application for insurance coverage. Further, it is unclear how Irnperial’s broad request would produce any evidence supporting a claim for staged accident. Ms. Diaz admitted the time discrepancy in her deposition. Her W-2 forms, past worker’s compensation 1 Although not argued, the insurer’s request for Ms. Diaz’s “applications, W-2 forms, evaluations, incident reports, disciplinary actions, vv'orker’s compensation information, training records, pay records, total hours worked for the months of July, 2011 and April 2013” is not narrowly tailored to yield evidence of the time of accident. Page 2 of 4 [*4] ' Imperial Fire & Casualty mg) v Fla. Services & Solution Corp Case No. 13-318 AP claims, pay records, and other doctunents requested are unlikely to lead to any additional evidence that on the day ofthis accident, she committed fraud. Standard of Review & Analysis To merit certiorari review of the trial court’s order denying discovery, the Petitioner must demonstrate 1) that the harm caused by the error constitutes a material injury which will affect the remainder of the proceedings for which the remedy on appeal will be inadequate; and 2) that the irreparable harm was caused by a departure from the “essential requirements of the law.” Bd. ofTrustees ofthe Internal Improvement Trust Fund v.. Am. Educ. Enters. LLC. 99 So. 3d 450, 454 (Fla.20l2); Allstate Ins. C0. v. Langston, 655 So. 2d 91 (Fla. 1995); A.G. v. Fla. Dept. of Children and Families, 65 So. 3d 1180 (Fla. 1stDCA 2011). Courts have repeatedly cautioned that certiorari should not be used to expand jurisdiction to include review of every interlocutory discovery order which rarely implicates irreversible harm; or used to circtunvent a judicial policy disfavoring piecemeal review. The Third District Court of Appeal recently explained in Damsky v. Univ. of Miami, _ So. 3d _, 2014 WL 6911338 (Fla. 3d DCA Dec. 10, 2014) that especially in review of orders denying discovery, certiorari is extremely limited: [A]n order that denies discovery normally does not rise to the level of irreparable harm because it can be readily remedied on appeal; therefore, “orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.” Neeley v. CW Roberts Contracting, lnc., 948 So. 2d 844 (Fla. lst DCA 2007); see also Esman v. Bd. ofRegents, 425 So. 2d 156, 157 (Fla. lst DCA 1983) (“[T]he trial court's interlocutory ruling denying discovery does not fumish the occasion for this coLut‘s intervention through the use of the extraordinary writ.”). Here, certiorari is not warranted for two reasons. First, discovery “is limited to those matters relevant to the litigation as framed by the parties’ pleadings.” Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA 2014) (citations omitted). The affirmative defenses and counterclaim pied by Imperial addressed material misrepresentation in the clainiant’s initial application for insurance, not an alleged fraud related to a time discrepancy in the accident itself. Imperial did not plead an allegation that this accident was staged or that it did not occur. Thus, any issue concerning the timing of when the accident was alleged to have occurred, allegedly off by one to two hours, was not framed by the pleadings. . . . . . “ . Second, to warrant certiorari review, an order denying discovery must effectively eviscerate” a party’s claim or defense and leave no other practical method of discovery that Page 3 of 4 [*5] Imperial Fire & Casualty lng v Fla. Services & Solution Corp Case No. 13-318 AP would have determined the outcome of the proceedings. Kmart Corp. v. Sundmacher, 997 So. 2d 1158 (Fla. 3d DCA 2008) (holding certiorari is appropriate when there is an inability to obtain the materials by other means). Here, the information Imperial wishes to discover certainly did not eviscerate its claim or defenses and can be obtained from alternative means. Since this Court finds no departure from the essential requirements of law and no irreparable harm requiring immediate review, we decline to grant certiorari relief. Therefore, the Petition for Writ of Certiorari is hereby DENIED. Accordingly, ImperiaI’s motion for attorney’s fees is denied as well. Florida Services, however, is entitled to an award of appellate attorney’s fees contingent upon prevailing on the merits in the proceedings below. Allstar Builders C0rp., Inc. v. Zimmerman, 706 So. 2d 92 (Fla. 3d DCA 1998) (the party prevailing on the interlocutory appeal must also be the ultimate prevailing party in the trial court to be entitled to a final judgment of appellate fees from the interlocutory appeal). In the event Florida Services does prevail in the proceedings on remand, the trial court is directed to assess the appropriate amount of appellate attorney’s fees. MARIN and CYNAMON, JJ., concur. 1/ Done and Ordered in Miami-Dade County this,‘/I/aiy of January, 2015. '0 up' \\. Lsa lsh An onio Marin " bby Cynamon Circuit Court Judge Circuit Court Judge Circuit Court Judge cc: Douglas Stein, Esq. Marlene Reiss, Esq.