Preview
Filing # 125611253 E-Filed 04/26/2021 03:35:51 PN
BROWARD COUNTY, FLORIDA
CASE NO: CACE-20-017617
HAVEN GROUP, INC.,
Plaintiff,
v.
CITIZENS PROPERTY
INSURANCE CORPORATION,
Defendant.
DEFENDANT'S MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S NOTICE,
OF TAKING DEPOSITION OF FIELD ADJUSTER
COMES NOW, the Defendant, Citizens Property Insurance Corporation (“Citizens”), by and
through the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), files this, its Motion for
Protective Order Regarding Plaintiff's Request for Deposition of Field Adjuster and in support
thereof states as follows:
1, The instant action involves a lawsuit filed by the Plaintiff, against Citizens resulting
from Hurricane Irma that took place on or about September 10, 2017, at the property located at
10954 Neptune Drive, Hollywood, FL 33026.
2. Citizens objects to any area of inquiry or production of documents which seeks a
legal conclusion, or the mental impressions, legal analysis and strategy employed by defense
counsel in this matter, in violation of the attorney client and work product privilege. Citizens
further objects to any line of questioning with the Field Adjuster concerning policy interpretation,
policy training, or policy application. Policy interpretation is a question of law for the court, and
Plaintiff's counsel should be precluded from questioning the Adjuster concerning policy
interpretation, policy training, or policy application in connection with the reported loss. Ergas v.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/26/2021 03:35:51 PM.****Universal Prop. & Cas. Ins. Co., 114 So. 3d 286, 288 (Fla. 4!" DCA 2013) (“The construction of
an insurance policy is a question of law for the court”) Escobar v. United Auto. Ins. Co., 898 so.
Co., 898 so. 2d 952, 954 (Fla. 3d DCA 2005).
3. Citizens also objects to any hypothetical questions being posed to the Field
Adjuster. Hypothetical questions exist “to obtain the opinion of an expert witness as to
probabilities under a given case, the facts of which recited in the question are supposed to be
established.” Atl. Coast Line R. Co. v. Shouse, 91 So. 90 (Fla. 1922). Emphasis added. An expert
witness is defined as “a person duly and regularly engaged in the practice of a profession who
holds a professional degree from a university or college and has had special professional training
and experience, or one possessed of special knowledge or skill about the subject upon which called
to testify.” Fla. R. Civ. P. 1.390. The Field Adjuster is in no way, shape, or form an expert witness.
Rather, he or she is a lay witness representing Citizens’ collective knowledge of this particular
subject claim. As such, the Field Adjuster cannot answer hypothetical questions and therefore none
should be posed to him or her.
4. Citizens also objects to the production of any documents concerning Citizens’
investigation of the claim, Citizens’ relationship with any insurance adjuster, Citizens claims
manual or statement of policies, and any of Citizens’ training manuals, as they are not relevant and
go to bad faith which is not an issue to the underlying action and therefore is not relevant to this
matter. Citizens objects to the extent that the requests go to bad faith discovery. Bad faith discovery
is not permitted in breach of contract actions. Maryland Casualty Company v. Alicia Diagnostic,
Inc., 961 So. 2d 1091, 1092 (Fla. 5 DCA 2007). “[A] party cannot pursue a cause of action [in
Florida] for unfair settlement practices until the party has determined that it is entitled to recover
under the insurance contract issue.” Progressive American Ins. Co. v. Rural Metro Corp. ofFlorida, 994 So. 2d 1202, 1208 (Fla. 5" DCA 2008). [T]here can be no unfair settlement if there
is no established coverage to be settled. Id. The reason for resolving coverage issues before
allegations of improper claims handling is because if there is no coverage available for the
reported loss then the insurer cannot have acted in bad faith in denying or refusing to settle the
claim. (emphasis added) Maryland Casualty Co., 961 So. 2d at 1092.
5. Citizens specifically objects to the production of documents which are protected by the
work product privilege or attorney client privilege. Citizens further objects to the production of
documents contained within Citizens’ claims file as the claims file is considered work product
and protected from disclosure. See State Farm Fire and Cas. Co. v. Valido, 662 So. 2d 1012 (Fla.
3d DCA 1995) (holding that claim files, manuals, guidelines, and documents concerning claim
handling procedures are irrelevant, and photographs, witness statements, and repair estimates are
protected by work product privilege); Fed. Ins. Co. v. Hall, 708 So. 2d 976 (Fla. 3d DCA 1998)
(holding that adjustor’s notes are protected by the work product privilege); Nationwide Ins. Co. Of
Fla. v. Demmo, 57 So. 3d 982, 984 (Fla. 2d DCA 2011) (holding that a trial court departs from the
essential requirements of law in compelling disclosure of the contents of an insurer’s claim file
when the issue of coverage is in dispute and has not been resolved); State Farm Fla. Ins. Co. v.
Ramirez, 86 So. 3d 1198 (Fla. 3d DCA 2012) (quashing an order compelling the production of the
claim file). Homeowner’s Choice Prop. & Cas. Ins. Co., Inc. v. Avila, 3D17-465, 2018 WL
1936572. (A trial court departs from the essential requirements of the law in compelling disclosure
of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been
resolved.)
6. Citizens also states that the deposition of Citizens’ Field Adjuster should be limited
to a maximum duration of 3 hours, and any such time beyond said limit will constituteunreasonableness, annoyance, harassment, undue burden and expense to the deponent and the
Defendant. There is no reason Plaintiff's counsel cannot cover all the relevant areas of inquiry
within 3 hours. The court has broad discretion to oversee discovery proceedings and limit
discovery as necessary when good cause is shown. American Southern Co. v. Tinter, Inc., 565 So.
2d 891 (Fla. 3d DCA 1990).
7. Pursuant to Fla. R. Civ. P. 1.280(c), “[u]pon motion by a party or by the person
from whom discovery is sought, and for good cause shown, the court in which the action is
pending may make any order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense that justice requires.”
8. The undersigned certifies that a good faith effort has been or will be made with
opposing counsel to resolve the issues addressed herein prior to hearing.
9. Accordingly, Citizens requests that this Honorable Court issue a Protective Order
against Plaintiff's deposition of Citizens’ Field Adjuster.
WHEREFORE, the Defendant, Citizens Property Insurance Corporation, respectfully
requests that this Honorable Court enter an Order granting its Motion for Protective Order and for
such other relief the Court may deem just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
Email, pursuant to Fla. R. Jud. Admin. 2.516(b)(1) via transmission of Notice of Electronic Filing
generated by eservice@myflcourtaccess.com or by EFileMadeEasy.com and/or was sent by
electronic mail on April 26, 2021 to:
Lynn Gambino Gambino, Esq., Esq. service@mineolaw.com;
THE MINEO SALCEDO LAW FIRM, P.A. lgambino@mineolaw.com;
5600 Davie Road hannettee@mineolaw.com
Davie, FL 33314
(954) 463-8100
Page 4 of 5LAW OFFICES OF HOFFMAN & HOFFMAN, P.A.
66 W. Flagler Street, Suite 200, Miami, Florida 33130
Telephone: 305.372.2877 / Facsimile: 305.372.2875
EService E-mail: eservice@hoffmanpa.com
By: /s/ Jillian D. Rice, Esq.
John D. Hoffman, Esq.
Board Certified Civil Trial Lawyer
Florida Bar No. 825859 / E-mail: john@hoffmanpa.com
Jennifer Valiyi, Esq.
Florida Bar No. 116079 / E-mail: jennifer@hoffmanpa.com
Jillian Rice, Esq.
Florida Bar No. 47128 / E-mail: jrice@hoffmanpa.com
Page 5 of 5
Preview
Filing # 125611253 E-Filed 04/26/2021 03:35:51 PN BROWARD COUNTY, FLORIDA CASE NO: CACE-20-017617 HAVEN GROUP, INC., Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. DEFENDANT'S MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S NOTICE, OF TAKING DEPOSITION OF FIELD ADJUSTER COMES NOW, the Defendant, Citizens Property Insurance Corporation (“Citizens”), by and through the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), files this, its Motion for Protective Order Regarding Plaintiff's Request for Deposition of Field Adjuster and in support thereof states as follows: 1, The instant action involves a lawsuit filed by the Plaintiff, against Citizens resulting from Hurricane Irma that took place on or about September 10, 2017, at the property located at 10954 Neptune Drive, Hollywood, FL 33026. 2. Citizens objects to any area of inquiry or production of documents which seeks a legal conclusion, or the mental impressions, legal analysis and strategy employed by defense counsel in this matter, in violation of the attorney client and work product privilege. Citizens further objects to any line of questioning with the Field Adjuster concerning policy interpretation, policy training, or policy application. Policy interpretation is a question of law for the court, and Plaintiff's counsel should be precluded from questioning the Adjuster concerning policy interpretation, policy training, or policy application in connection with the reported loss. Ergas v. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/26/2021 03:35:51 PM.****Universal Prop. & Cas. Ins. Co., 114 So. 3d 286, 288 (Fla. 4!" DCA 2013) (“The construction of an insurance policy is a question of law for the court”) Escobar v. United Auto. Ins. Co., 898 so. Co., 898 so. 2d 952, 954 (Fla. 3d DCA 2005). 3. Citizens also objects to any hypothetical questions being posed to the Field Adjuster. Hypothetical questions exist “to obtain the opinion of an expert witness as to probabilities under a given case, the facts of which recited in the question are supposed to be established.” Atl. Coast Line R. Co. v. Shouse, 91 So. 90 (Fla. 1922). Emphasis added. An expert witness is defined as “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.” Fla. R. Civ. P. 1.390. The Field Adjuster is in no way, shape, or form an expert witness. Rather, he or she is a lay witness representing Citizens’ collective knowledge of this particular subject claim. As such, the Field Adjuster cannot answer hypothetical questions and therefore none should be posed to him or her. 4. Citizens also objects to the production of any documents concerning Citizens’ investigation of the claim, Citizens’ relationship with any insurance adjuster, Citizens claims manual or statement of policies, and any of Citizens’ training manuals, as they are not relevant and go to bad faith which is not an issue to the underlying action and therefore is not relevant to this matter. Citizens objects to the extent that the requests go to bad faith discovery. Bad faith discovery is not permitted in breach of contract actions. Maryland Casualty Company v. Alicia Diagnostic, Inc., 961 So. 2d 1091, 1092 (Fla. 5 DCA 2007). “[A] party cannot pursue a cause of action [in Florida] for unfair settlement practices until the party has determined that it is entitled to recover under the insurance contract issue.” Progressive American Ins. Co. v. Rural Metro Corp. ofFlorida, 994 So. 2d 1202, 1208 (Fla. 5" DCA 2008). [T]here can be no unfair settlement if there is no established coverage to be settled. Id. The reason for resolving coverage issues before allegations of improper claims handling is because if there is no coverage available for the reported loss then the insurer cannot have acted in bad faith in denying or refusing to settle the claim. (emphasis added) Maryland Casualty Co., 961 So. 2d at 1092. 5. Citizens specifically objects to the production of documents which are protected by the work product privilege or attorney client privilege. Citizens further objects to the production of documents contained within Citizens’ claims file as the claims file is considered work product and protected from disclosure. See State Farm Fire and Cas. Co. v. Valido, 662 So. 2d 1012 (Fla. 3d DCA 1995) (holding that claim files, manuals, guidelines, and documents concerning claim handling procedures are irrelevant, and photographs, witness statements, and repair estimates are protected by work product privilege); Fed. Ins. Co. v. Hall, 708 So. 2d 976 (Fla. 3d DCA 1998) (holding that adjustor’s notes are protected by the work product privilege); Nationwide Ins. Co. Of Fla. v. Demmo, 57 So. 3d 982, 984 (Fla. 2d DCA 2011) (holding that a trial court departs from the essential requirements of law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved); State Farm Fla. Ins. Co. v. Ramirez, 86 So. 3d 1198 (Fla. 3d DCA 2012) (quashing an order compelling the production of the claim file). Homeowner’s Choice Prop. & Cas. Ins. Co., Inc. v. Avila, 3D17-465, 2018 WL 1936572. (A trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved.) 6. Citizens also states that the deposition of Citizens’ Field Adjuster should be limited to a maximum duration of 3 hours, and any such time beyond said limit will constituteunreasonableness, annoyance, harassment, undue burden and expense to the deponent and the Defendant. There is no reason Plaintiff's counsel cannot cover all the relevant areas of inquiry within 3 hours. The court has broad discretion to oversee discovery proceedings and limit discovery as necessary when good cause is shown. American Southern Co. v. Tinter, Inc., 565 So. 2d 891 (Fla. 3d DCA 1990). 7. Pursuant to Fla. R. Civ. P. 1.280(c), “[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires.” 8. The undersigned certifies that a good faith effort has been or will be made with opposing counsel to resolve the issues addressed herein prior to hearing. 9. Accordingly, Citizens requests that this Honorable Court issue a Protective Order against Plaintiff's deposition of Citizens’ Field Adjuster. WHEREFORE, the Defendant, Citizens Property Insurance Corporation, respectfully requests that this Honorable Court enter an Order granting its Motion for Protective Order and for such other relief the Court may deem just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via Email, pursuant to Fla. R. Jud. Admin. 2.516(b)(1) via transmission of Notice of Electronic Filing generated by eservice@myflcourtaccess.com or by EFileMadeEasy.com and/or was sent by electronic mail on April 26, 2021 to: Lynn Gambino Gambino, Esq., Esq. service@mineolaw.com; THE MINEO SALCEDO LAW FIRM, P.A. lgambino@mineolaw.com; 5600 Davie Road hannettee@mineolaw.com Davie, FL 33314 (954) 463-8100 Page 4 of 5LAW OFFICES OF HOFFMAN & HOFFMAN, P.A. 66 W. Flagler Street, Suite 200, Miami, Florida 33130 Telephone: 305.372.2877 / Facsimile: 305.372.2875 EService E-mail: eservice@hoffmanpa.com By: /s/ Jillian D. Rice, Esq. John D. Hoffman, Esq. Board Certified Civil Trial Lawyer Florida Bar No. 825859 / E-mail: john@hoffmanpa.com Jennifer Valiyi, Esq. Florida Bar No. 116079 / E-mail: jennifer@hoffmanpa.com Jillian Rice, Esq. Florida Bar No. 47128 / E-mail: jrice@hoffmanpa.com Page 5 of 5