23
Fla. L. Weekly Supp. 399b

Insurance
— Personal injury protection — Discovery — Depositions — Petition for writ
of certiorari challenging order denying insurer’s motion seeking to prevent
deposition of insurer’s corporate representative on topics alleged to be
privileged is denied where insurer has failed to show that order caused it
irreparable harm — If corporate representative is asked to testify to
privileged information or is required to produce privileged materials at
deposition, insurer may raise contemporaneous objection to be dealt with by
trial court

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner,
v. PREMIER DIAGNOSTIC IMAGING, a/a/o CLAUVEL BENJAMIN, Respondent. Circuit
Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil
Division. Case No. 502014CA004977XXXXMB, Division AY. L.T. Case No. 502012SC005017XXXXMB.
August 28, 2015. Appeal from the County Court in and for Palm Beach County,
Judge Frank S. Castor. Counsel: Nancy W. Gregoire, Fort Lauderdale, for
Petitioner. Shannon M. Mahoney, West Palm Beach, for Respondent.

(PER CURIAM.) Upon reconsideration of the instant case in
light of Respondent’s Renewed Motion for Rehearing, the Court withdraws its
previous opinion, grants Respondent’s Renewed Motion for Rehearing, and denies
the Petition for Writ of Certiorari.

Background

Respondent, Premier Diagnostic Imaging (“Premier”), provided
medical treatment for Clauvel Benjamin (“Insured”) after Insured was injured in
an automobile accident. Insured had an insurance policy with Petitioner, State
Farm Mutual Automobile Insurance Company (“State Farm”) and assigned the
benefits under this policy to Premier. Premier submitted a bill to State Farm,
who reimbursed Premier for less than the bill’s amount. Premier filed the
underlying action seeking to recover what it argues is the remainder of the
reasonable amount for the services rendered.

As part of discovery regarding its claim, Premier sought to
depose State Farm’s corporate representative. The topics Premier sought to
discuss with the representative included, in relevant part:

The
specific methodology that [State Farm] used when it determined the amount to
pay [Premier] for the services at issue in this action prior to the lawsuit
being filed. 

a.
Who made the determination to utilize this specific payment methodology? 

b.
Why was this specific payment methodology selected? 

c.
When was it decided that this payment methodology would be used? 

d.
How was the methodology applied in this case?

e.
What specific statutory authority did [State Farm] rely upon when it decided to
reimburse [Premier] pursuant to the Medicare Part B fee schedule? 

i.
Where in [State Farm]’s policy did [State Farm] provide notice to the insured
of its election to use the Medicare Part B fee schedule as the sole basis for
determining what amount would be a reasonable reimbursement amount?

. .
.

What
principles and methods did [State Farm] utilize to make the determination that
[Premier]’s charges were not reasonable.

After receiving notice of these intended deposition topics,
State Farm moved for a protective order seeking to prevent deposition testimony
on the above topics. On March 24, 2014, the trial court held a hearing on State
Farm’s Motion for Protective Order. That same day, the trial court denied State
Farm’s motion as noncompliant with Florida Rule of Civil Procedure 1.280(c).
State Farm filed the instant Petition for Writ of Certiorari (“Petition”) in
response, seeking to quash the trial court’s order.

Standard
of Review

A non-final order that is not appealable under Florida Rule
of Civil Procedure 9.130 is reviewable as a petition for writ of certiorari
where the order is “(1) a departure from the essential requirements of the law,
(2) resulting in material injury for the remainder of the case (3) that cannot
be corrected on postjudgment appeal.” Bd. of Trustees of Internal Improvement
Trust Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla. 2012) [37 Fla. L.
Weekly S589a] (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.
2d 812, 822 (Fla. 2004) [29 Fla. L. Weekly S783a]). The final two prongs of
this test essentially ask whether the essential requirements of the law cause
“irreparable harm.” Id. at 455.

Analysis
and Legal Conclusions

State Farm argues the trial court departed from the
essential requirements of law in failing to issue a protective order because
the proposed deposition testimony would allow for discovery of privileged
information. The Court does not reach this issue because State Farm has failed
to show the trial court’s order caused it irreparable harm.

A petition for certiorari challenging a discovery order fails
to establish irreparable harm when it is “premature and speculative.” Poston
v. Wiggins, 112 So. 3d 783, 786 (Fla. 1st DCA 2013) [38 Fla. L. Weekly
D1104a]. Here, the trial court denied a motion for protective order in response
to categories of deposition questions as opposed to a request for documents or
materials. The trial court’s order did not require production of privileged
materials or information, as the trial court has merely denied the motion for
protective order for noncompliance with Florida Rule of Civil Procedure
1.280(c). If, during the deposition, State Farm’s representative is asked to
testify as to privileged information or is required to produce privileged
materials, State Farm may raise a contemporaneous objection to be dealt with by
the trial court. The trial court’s denial of State Farm’s Motion for Protective
Order does not in and of itself foreclose State Farm’s ability to seek relief
from production of allegedly privileged materials. Therefore the Petition is
speculative in nature and must be dismissed.

This conclusion is bolstered by State Farm’s concession in
its Reply that the trial court’s order did not cause State Farm irreparable
harm. As noted in the Reply:

To
the extent [Premier] has now limited the information it seeks, the Discovery
Order will not cause State Farm irreparable harm. However, to the extent
[Premier]’s present position is inconsistent with the position that it appeared
to take below, and to the extent that the Discovery Order was entered on that
position, the Court should issue the writ and protect State Farm’s corporate
representative from the obligation to testify to anything more than what
[Premier] now seeks.

(Reply at 15 (emphasis added)). To the extent State Farm
seeks certiorari relief to protect itself from anything more than what Premier
actually seeks, its argument must be rejected. This Court will not invade the
province of the trial court during discovery and will not grant certiorari
based on the mere possibility Premier could seek information separate than what
it claims to seek. State Farm remains free to raise any future discovery issues
with the trial court.

For the reasons set forth above, State Farm suffered no
irreparable harm from the trial court’s denial of its Motion for Protective
Order. The Petition for Writ of Certiorari is DISMISSED. State Farm’s Motion
for Appellate Attorney’s Fees is DENIED. Premier’s Motion for Appellate
Attorney’s Fees is GRANTED conditioned upon its prevailing in the lower court.
(BARKDULL, OFTEDAL, and GOODMAN, JJ., concur.)