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Filing # 131046115 E-Filed 07/20/2021 03:58:21 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO: CACE-21-007707
KARLA JEAN AND HEAVEN
DESIR,
Plaintiff(s),
V
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
'
DEFENDANT'S MOTION FOR PROTECTIVE ORDER
REGARDING THE DEPOSITIONOF FIELD ADJUSTER
COMES NOW, the Defendant, Citizens Property Insurance Corporation ("Citizens"), by
and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), hereby files this Motion
for Protective Order regarding the deposition of Defendant's Field Adjuster and in support thereof
states as follows:
1. This lawsuit concerns a dispute over insurance benefits regarding a claim made at the property
located at 2612 Everglades Dr., Miramar, FL, 33023, associated with a date of loss of
November 9,2020, under a policy of insurance bearing the policy number: 02897034-1.
2. Plaintiff is now seeking to depose the independent Field Adjuster who was initially assigned
to the subject claim.
3. Citizens does not object to the deposition of the Field Adjuster. Rather, Citizens objects to any
requests for Citizens' claims file or claims file materials and/or notes that the Field Adjuster
may inadvertentlystill be in possession of.
LAW OFFICE OF HOFFMAN & HOFFMAN, PA.
66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/20/2021 03:58:20 PM.****
4. The Field Adjuster was or is an independent representative of Citizens as it pertains to the
subject claim and possesses documentsin their file that are a part of Citizens' claim file.
5. To the extent the Plaintiffisseeking the claim file notes or claim file material within the duces
tecum requests, Citizens objects to the production of its claim file notes and materials related
to Citizens's investigation of the subject loss on the grounds that such a request is an improper
discovery request in a breach of contract action. Discovery of Citizens's claim file
notes/materialis not reasonably calculated to lead to the discovery of admissible evidence and
is beyond the scope of discovery permitted by Florida Law. See State Farm Fire and Cas. Co.
v. Falido, 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 the work product privilege). "Where... the
insured is not pursuing a bad faith claim, but rather seeks relief for breach of contract[,] [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." Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 317-465,2018 WL 1936527,
at (Fla. 3d DCA Apr. 25, 2018).
6. Florida case law indicates that bad faith discovery and general claims handling discovery is
not proper in a breach of contract action wherein coverage is still in dispute. Any line of
questioning regarding bad faith discovery or general claims handling discovery is improper
and the deponent should not be required to answer these types of questions. Id.
7. Additionally, Citizens objects to any line of questioning with the Field Adjuster concerning
policy interpretation, policy training, or policy application. The Field Adjuster is an
independent field adjuster that was hired by Citizens to do the initial field inspectionfollowing
LAW OFFICE OF HOFFMAN & HOFFMAN, PA.
66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875
the Plaintiff's notice of loss. Policy interpretation is a question of law for the court, and
Plaintiff's counsel should be precluded from questioning the Field Adjuser about any policy
interpretations in connection with the reported date of loss. Ergas v. Universal Prop. & Cas.
Ins. Co., 114 So. 3d 286, 288 (Fla. 4th DCA 2013) ("The construction of an insurance policy
is a question of law for the court."); Escobar v. United Auto Ins. Co., %9% So. 2d 952 (Fla. 3d
DCA 2005).
8. Pursuant to Fla. R. Civ. P. 1.280(c), "[ulpon 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."
9. The undersigned certifies that a good faith effort has been or will be made with the opposing
counsel to resolve the issues addressed herein prior to hearing.
10. Accordingly, Citizens seeks a ProtectiveOrder againstthe production ofthe documents sought
in Plaintiff's requests that are to be identified in Defendant's Privilege Log; and an order
limiting the area of inquiry with the Field Adjuster as far as policy interpretations, bad faith,
and generalized claims handling are concerned.
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
WE HEREBY CERTIFY that a true and correct copy ofthe foregoing was served via the
Florida Courts E-Filing Portal, pursuant to Fla. R. Jud. Admin. 2.516(b)(1), on July 20,2021 to:
Kassandra Soto Campos, Esq.
MORGAN LAW GROUP, P.A.
55 Merrick Way, Suite 404
LAW OFFICE OF HOFFMAN & HOFFMAN, PA.
66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875
Coral Gables, FL 33134
LAW 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:
By: s/ John D. Hoffman, Esq.
John D. Hoffman, Esq.
Board Certtfted Civil Trial Lawyer
Florida Bar No. 825859 / E-mail: john@hoffmanpa.com
LAW OFFICE OF HOFFMAN & HOFFMAN, PA.
66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875
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Filing # 131046115 E-Filed 07/20/2021 03:58:21 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE-21-007707 KARLA JEAN AND HEAVEN DESIR, Plaintiff(s), V CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. ' DEFENDANT'S MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONOF FIELD ADJUSTER COMES NOW, the Defendant, Citizens Property Insurance Corporation ("Citizens"), by and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), hereby files this Motion for Protective Order regarding the deposition of Defendant's Field Adjuster and in support thereof states as follows: 1. This lawsuit concerns a dispute over insurance benefits regarding a claim made at the property located at 2612 Everglades Dr., Miramar, FL, 33023, associated with a date of loss of November 9,2020, under a policy of insurance bearing the policy number: 02897034-1. 2. Plaintiff is now seeking to depose the independent Field Adjuster who was initially assigned to the subject claim. 3. Citizens does not object to the deposition of the Field Adjuster. Rather, Citizens objects to any requests for Citizens' claims file or claims file materials and/or notes that the Field Adjuster may inadvertentlystill be in possession of. LAW OFFICE OF HOFFMAN & HOFFMAN, PA. 66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/20/2021 03:58:20 PM.**** 4. The Field Adjuster was or is an independent representative of Citizens as it pertains to the subject claim and possesses documentsin their file that are a part of Citizens' claim file. 5. To the extent the Plaintiffisseeking the claim file notes or claim file material within the duces tecum requests, Citizens objects to the production of its claim file notes and materials related to Citizens's investigation of the subject loss on the grounds that such a request is an improper discovery request in a breach of contract action. Discovery of Citizens's claim file notes/materialis not reasonably calculated to lead to the discovery of admissible evidence and is beyond the scope of discovery permitted by Florida Law. See State Farm Fire and Cas. Co. v. Falido, 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 the work product privilege). "Where... the insured is not pursuing a bad faith claim, but rather seeks relief for breach of contract[,] [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." Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 317-465,2018 WL 1936527, at (Fla. 3d DCA Apr. 25, 2018). 6. Florida case law indicates that bad faith discovery and general claims handling discovery is not proper in a breach of contract action wherein coverage is still in dispute. Any line of questioning regarding bad faith discovery or general claims handling discovery is improper and the deponent should not be required to answer these types of questions. Id. 7. Additionally, Citizens objects to any line of questioning with the Field Adjuster concerning policy interpretation, policy training, or policy application. The Field Adjuster is an independent field adjuster that was hired by Citizens to do the initial field inspectionfollowing LAW OFFICE OF HOFFMAN & HOFFMAN, PA. 66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875 the Plaintiff's notice of loss. Policy interpretation is a question of law for the court, and Plaintiff's counsel should be precluded from questioning the Field Adjuser about any policy interpretations in connection with the reported date of loss. Ergas v. Universal Prop. & Cas. Ins. Co., 114 So. 3d 286, 288 (Fla. 4th DCA 2013) ("The construction of an insurance policy is a question of law for the court."); Escobar v. United Auto Ins. Co., %9% So. 2d 952 (Fla. 3d DCA 2005). 8. Pursuant to Fla. R. Civ. P. 1.280(c), "[ulpon 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." 9. The undersigned certifies that a good faith effort has been or will be made with the opposing counsel to resolve the issues addressed herein prior to hearing. 10. Accordingly, Citizens seeks a ProtectiveOrder againstthe production ofthe documents sought in Plaintiff's requests that are to be identified in Defendant's Privilege Log; and an order limiting the area of inquiry with the Field Adjuster as far as policy interpretations, bad faith, and generalized claims handling are concerned. 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 WE HEREBY CERTIFY that a true and correct copy ofthe foregoing was served via the Florida Courts E-Filing Portal, pursuant to Fla. R. Jud. Admin. 2.516(b)(1), on July 20,2021 to: Kassandra Soto Campos, Esq. MORGAN LAW GROUP, P.A. 55 Merrick Way, Suite 404 LAW OFFICE OF HOFFMAN & HOFFMAN, PA. 66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875 Coral Gables, FL 33134 LAW 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: By: s/ John D. Hoffman, Esq. John D. Hoffman, Esq. Board Certtfted Civil Trial Lawyer Florida Bar No. 825859 / E-mail: john@hoffmanpa.com LAW OFFICE OF HOFFMAN & HOFFMAN, PA. 66 W. Flagler Street, Suite 200, Miami, Florida 33130-Telephone: 305.372.2877Fax: 305.372.2875