Preview
Filing# 136373196 E-Filed 10/12/2021 12:24:58 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR BROWARD
COUNTY, FLORIDA
CASE NO: CACE21-016125 (03)
SELMA CURTIS,
Plaintiff,
VS.
STATE FARM FLORIDA INSURANCE
COMPANY,
Defendant,
DEFENDANT'S MOTION FOR PROTECTIVE ORDER
COMES NOW, Defendant, STATE FARM FLORIDA INSURANCE COMPANY, by
and through the undersigned attorney, and moves this Honorable Court for an Order of
Protection concerningthe deposition
of the State Farm Florida Insurance Company's corporate
representative,
and as grounds therefore states:
1.
This case is a first-party
property insurance disputebetween Plaintiffs as the
homeowners and Defendant as their property insurer stemming from a water
damage that allegedlyoccurred on or about July2,2021.
2.
That on or about September20, 2021, the Plaintiff filed a Notice of Taking Video
DepositionDuces Tecum of Defendant's Corporate Representativescheduled to
occur on January 20,2022 at 10:00 a.m. (attachedhereto as Exhibit "A").
3.
Additionally,
the Plaintiffs' Notice requestedthe productionof certain specific
documents as well as generallydescribed types of documents pursuant to Rule
1.350. Id
[6047782/1]
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/12/2021 12:24:58 PM.****
4.
State Farm Florida Insurance Company objectsgenerallyto the Notice in as much
as it contains areas of inquiryand document requests that are vague, overbroad in
time and scope, and which are irrelevant and not reasonablycalculated to lead to
the discoveryof admissible evidence,as it pertainsto the sole and central issue in
litigation:whether Defendant has breached the contract of insurance as
particularly
allegedby Plaintiff.
5
State Farm Florida Insurance Company objectsto the Plaintiff'sNotice regarding
any intended inquiry,
or requests for documents, to the extent that such inquiries
or requests seek information protectedby work product and/or attorney-client
privilege.
6
State Farm Florida Insurance Company generallyobjectsto any inquiry and
request for production of documents that would go into or deals in claims
handling practices,guidelines,
procedures,adjuster interpretations,
theories,
strategies,
and generalbusiness practices;in addition to any inquiryinto or
request for productionof adjusterand field representative
notes, logs,or other
similar entries and documents; and items outside the portionsof the claim file
already produced in discovery as these areas of inquiry and requests for
productionare irrelevant to the sole and central issue of whether there is coverage
owed and if there is coverage owed, whether there has been a breach of the
insurance contract, and are instead,impermissibleand premature attempts to
obtain bad-faith discovery in this first-party
non-bad-faith suit,to which State
Farm has not been properly and legallyplaced on notice of.;See Scottsdale
Insurance Company v. Camara de los Estados Unidos, Inc., 813 So.2d 250 (Fla.
[6047782/1]
3rd DCA 2002) citingState Farm Fire & Cas. Co. v. Wheeland, 64% So.2d 297
(Fla.3rd DCA 1995); American Reliance Insurance Company v. Rosemont
Condominium Homeowners Association, 671 So.2d 250 (Fla.3rd DCA 1996);
State Farm Fire & Cas. Co. v. Falido, 662 So.2d 1012 (Fla. 3rd DCA 1995);
Utica Mutual Insurance Company vs. Croji,432 So.2d 196 (Fla.1st DCA 1983).
See, e.g, Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121, 1123 (Fla.2005)
("[g.]enerally,
an insurer's claims and litigation
files constitute work product and
are protectedfrom production")See also, State Farm Fla. Ins. Co. v. Gallmon,
835 So. 2d 389,390 (Fla.2d DCA 2003) (findingthat "claim files,investigative
reports, adjusternotes, underwritingfiles,"and other documents are "either
irrelevant to the first-party
disputethat this case presents or are privilegedwork
product").Florida courts have repeatedlyheld that an insurer's claims files are
not discoverable in a breach of contract case such as this and before the plaintiff
either bringsa bad faith claim or priorto the bad faith claim being ripe.See State
Farm Mut. Auto. Ins. Co. v. Premier Diag. Ctrs., LLC, 185 So. 3d 575,576-77
(Fla.3d DCA 2016) (quashingdiscoveryorders requiringproductionof adjusters'
notes to medical care providerin non-bad-faith actions)(collecting
cases)."Until
the obligationto provide coverage and damages has been determined, a party is
not entitled to discoveryrelated to the claims file or to the insurer's business
policiesor practicesregardinghandling of claims." State Farm Mut. Auto. Ins.
Co. v. Tranchese, 49 So. 3d 809, 810 (Fla.4th DCA 2010); see also State Farm
Florida Ins. Co. v. Desai, 106 So. 3d 5, 38 (Fla.3d DCA 2013) and GaUmon, at
390 (findingthat "claim files,investigativereports, adjusternotes" and other
[6047782/1]
documents are "either irrelevant to the first-party
disputethat this case presents or
are privileged
work product").RequiringState Farm Florida Insurance Company
to produce the materials sought by this request or to answer questionson these
topics,
would constitute "an irreparable
departurefrom the essential requirements
of the law resultingin manifest injustice."
Premier Diag. Ctrs., 185 So. 3d at
576.
7.
State Farm Florida Insurance Company specifically
objectsto areas of language
in the Notice of Taking Depositionfor Schedule "A" number(s) 8, 9, 12 and 13.
8.
State Farm Florida Insurance Company specifically
objectsto objectsto requests
for productionof documents found in the Duces Tecum attached to and made part
of the Notice located on Schedule "B" number(s) 3, 9, 10, 11, 13-21 as being
overbroad, irrelevant,immaterial, work product,attorney client communication,
trade secret, overbroad, unduly burdensome and harassing,
and beyond scope of
the witness's employment and area of testimony.
WHEREFORE, Defendant, STATE FARM FLORIDA INSURANCE COMPANY,
respectfully
requests this Honorable Court enter an Order of Protection regarding
the deposition
of the State Farm Florida Insurance Company's Corporate Representativescheduled to occur on
January20, at 10:00 a.m., via Zoom meeting.
[6047782/1]
CERTIFICATE OF SERVICE
I hereby certifythat a true and correct copy of the foregoingwas served by E-Mail on
October 12, 2021 to: Alicia Pokhoy ESQ., The PropertyPeople FL, P.A., 117 NE 1st Ave, Unit
15-104, Miami, FL 33132, Service@PropertyPeopleLaw.com;alicia@propertypeoplelaw.com.
KIRWAN, SPELLACY, DANNER,
WATKINS & BROWNSTEIN, P.A.
Attorneysfor Defendant
200 South Andrews Avenue, 8th Floor
Fort Lauderdale,FL 33301
t: (954) 463-3008
f: (954)463-3010
Pleadings:
pleadings@kirwanspellacy.com
BYW.il. Rmnsmiliz Exy.
R. RYAN SMITH
FLORIDA BAR NO. 119396
[6047782/1]
1 xhibit"A"
[6047782/1]
Filing# 134876820 E-Filed 09/20/2021 10:10:13 AM
In The Circuit Court Of The 17th JudicialCircuit
In And For Broward County, Florida
Selma Curtis,
Case No.: CACE-21-016125
Plaintiff(s),
VS.
State Farm Florida Insurance Company,
Defendant.
1
NOTICE OF TAKING DEPOSITION DLJCES TECUM
PLEASE TAKE NOTICE that the undersignedattorneys will take the depositionof:
Name
Date and Time
Location
Zoom
Meeting
ID
and
Information will be provided
Defendant's Corporate
January 20,2022
to counsel of record one day
Representative
10:00 A.M.
prior to scheduled deposition.
The depositionwill be taken upon oral examination before a Notary Public,or any officer authorized
by law to take depositions
in the State of Florida. This oral examination will continue from day to day
until completed.This depositionis beingtaken for the purpose of discovery,
for the use at trial or for
such other purposes as are permittedunder the applicable
and governingrules of Court.
In accordance with the Americans with Disabilities Act of 1990, persons needing special
accommodation to participate
in this proceedingshould contact the within-named attorney at no later
than seven dayspriorto the proceeding.
Please see the attached Subpoena which will be served upon the deponent, attached
hereto as Exhibit A, including document requests.
Respectfullysubmitted,
The Property People FL, P.A.
AttornelsforPlaintif
117 NE 1st Ave, Unit 15-104
Miami, FL 33132
Telephone:844.776.7364
E-Service: Sen iceW'.1'i
Preview
Filing# 136373196 E-Filed 10/12/2021 12:24:58 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE21-016125 (03) SELMA CURTIS, Plaintiff, VS. STATE FARM FLORIDA INSURANCE COMPANY, Defendant, DEFENDANT'S MOTION FOR PROTECTIVE ORDER COMES NOW, Defendant, STATE FARM FLORIDA INSURANCE COMPANY, by and through the undersigned attorney, and moves this Honorable Court for an Order of Protection concerningthe deposition of the State Farm Florida Insurance Company's corporate representative, and as grounds therefore states: 1. This case is a first-party property insurance disputebetween Plaintiffs as the homeowners and Defendant as their property insurer stemming from a water damage that allegedlyoccurred on or about July2,2021. 2. That on or about September20, 2021, the Plaintiff filed a Notice of Taking Video DepositionDuces Tecum of Defendant's Corporate Representativescheduled to occur on January 20,2022 at 10:00 a.m. (attachedhereto as Exhibit "A"). 3. Additionally, the Plaintiffs' Notice requestedthe productionof certain specific documents as well as generallydescribed types of documents pursuant to Rule 1.350. Id [6047782/1] *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/12/2021 12:24:58 PM.**** 4. State Farm Florida Insurance Company objectsgenerallyto the Notice in as much as it contains areas of inquiryand document requests that are vague, overbroad in time and scope, and which are irrelevant and not reasonablycalculated to lead to the discoveryof admissible evidence,as it pertainsto the sole and central issue in litigation:whether Defendant has breached the contract of insurance as particularly allegedby Plaintiff. 5 State Farm Florida Insurance Company objectsto the Plaintiff'sNotice regarding any intended inquiry, or requests for documents, to the extent that such inquiries or requests seek information protectedby work product and/or attorney-client privilege. 6 State Farm Florida Insurance Company generallyobjectsto any inquiry and request for production of documents that would go into or deals in claims handling practices,guidelines, procedures,adjuster interpretations, theories, strategies, and generalbusiness practices;in addition to any inquiryinto or request for productionof adjusterand field representative notes, logs,or other similar entries and documents; and items outside the portionsof the claim file already produced in discovery as these areas of inquiry and requests for productionare irrelevant to the sole and central issue of whether there is coverage owed and if there is coverage owed, whether there has been a breach of the insurance contract, and are instead,impermissibleand premature attempts to obtain bad-faith discovery in this first-party non-bad-faith suit,to which State Farm has not been properly and legallyplaced on notice of.;See Scottsdale Insurance Company v. Camara de los Estados Unidos, Inc., 813 So.2d 250 (Fla. [6047782/1] 3rd DCA 2002) citingState Farm Fire & Cas. Co. v. Wheeland, 64% So.2d 297 (Fla.3rd DCA 1995); American Reliance Insurance Company v. Rosemont Condominium Homeowners Association, 671 So.2d 250 (Fla.3rd DCA 1996); State Farm Fire & Cas. Co. v. Falido, 662 So.2d 1012 (Fla. 3rd DCA 1995); Utica Mutual Insurance Company vs. Croji,432 So.2d 196 (Fla.1st DCA 1983). See, e.g, Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121, 1123 (Fla.2005) ("[g.]enerally, an insurer's claims and litigation files constitute work product and are protectedfrom production")See also, State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389,390 (Fla.2d DCA 2003) (findingthat "claim files,investigative reports, adjusternotes, underwritingfiles,"and other documents are "either irrelevant to the first-party disputethat this case presents or are privilegedwork product").Florida courts have repeatedlyheld that an insurer's claims files are not discoverable in a breach of contract case such as this and before the plaintiff either bringsa bad faith claim or priorto the bad faith claim being ripe.See State Farm Mut. Auto. Ins. Co. v. Premier Diag. Ctrs., LLC, 185 So. 3d 575,576-77 (Fla.3d DCA 2016) (quashingdiscoveryorders requiringproductionof adjusters' notes to medical care providerin non-bad-faith actions)(collecting cases)."Until the obligationto provide coverage and damages has been determined, a party is not entitled to discoveryrelated to the claims file or to the insurer's business policiesor practicesregardinghandling of claims." State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla.4th DCA 2010); see also State Farm Florida Ins. Co. v. Desai, 106 So. 3d 5, 38 (Fla.3d DCA 2013) and GaUmon, at 390 (findingthat "claim files,investigativereports, adjusternotes" and other [6047782/1] documents are "either irrelevant to the first-party disputethat this case presents or are privileged work product").RequiringState Farm Florida Insurance Company to produce the materials sought by this request or to answer questionson these topics, would constitute "an irreparable departurefrom the essential requirements of the law resultingin manifest injustice." Premier Diag. Ctrs., 185 So. 3d at 576. 7. State Farm Florida Insurance Company specifically objectsto areas of language in the Notice of Taking Depositionfor Schedule "A" number(s) 8, 9, 12 and 13. 8. State Farm Florida Insurance Company specifically objectsto objectsto requests for productionof documents found in the Duces Tecum attached to and made part of the Notice located on Schedule "B" number(s) 3, 9, 10, 11, 13-21 as being overbroad, irrelevant,immaterial, work product,attorney client communication, trade secret, overbroad, unduly burdensome and harassing, and beyond scope of the witness's employment and area of testimony. WHEREFORE, Defendant, STATE FARM FLORIDA INSURANCE COMPANY, respectfully requests this Honorable Court enter an Order of Protection regarding the deposition of the State Farm Florida Insurance Company's Corporate Representativescheduled to occur on January20, at 10:00 a.m., via Zoom meeting. [6047782/1] CERTIFICATE OF SERVICE I hereby certifythat a true and correct copy of the foregoingwas served by E-Mail on October 12, 2021 to: Alicia Pokhoy ESQ., The PropertyPeople FL, P.A., 117 NE 1st Ave, Unit 15-104, Miami, FL 33132, Service@PropertyPeopleLaw.com;alicia@propertypeoplelaw.com. KIRWAN, SPELLACY, DANNER, WATKINS & BROWNSTEIN, P.A. Attorneysfor Defendant 200 South Andrews Avenue, 8th Floor Fort Lauderdale,FL 33301 t: (954) 463-3008 f: (954)463-3010 Pleadings: pleadings@kirwanspellacy.com BYW.il. Rmnsmiliz Exy. R. RYAN SMITH FLORIDA BAR NO. 119396 [6047782/1] 1 xhibit"A" [6047782/1] Filing# 134876820 E-Filed 09/20/2021 10:10:13 AM In The Circuit Court Of The 17th JudicialCircuit In And For Broward County, Florida Selma Curtis, Case No.: CACE-21-016125 Plaintiff(s), VS. State Farm Florida Insurance Company, Defendant. 1 NOTICE OF TAKING DEPOSITION DLJCES TECUM PLEASE TAKE NOTICE that the undersignedattorneys will take the depositionof: Name Date and Time Location Zoom Meeting ID and Information will be provided Defendant's Corporate January 20,2022 to counsel of record one day Representative 10:00 A.M. prior to scheduled deposition. The depositionwill be taken upon oral examination before a Notary Public,or any officer authorized by law to take depositions in the State of Florida. This oral examination will continue from day to day until completed.This depositionis beingtaken for the purpose of discovery, for the use at trial or for such other purposes as are permittedunder the applicable and governingrules of Court. In accordance with the Americans with Disabilities Act of 1990, persons needing special accommodation to participate in this proceedingshould contact the within-named attorney at no later than seven dayspriorto the proceeding. Please see the attached Subpoena which will be served upon the deponent, attached hereto as Exhibit A, including document requests. Respectfullysubmitted, The Property People FL, P.A. AttornelsforPlaintif 117 NE 1st Ave, Unit 15-104 Miami, FL 33132 Telephone:844.776.7364 E-Service: Sen iceW'.1'i