Preview
Filing # 93256345 E-Filed 07/26/2019 05:13:06 PM
IN THE CIRCUIT COURT OF THE
20% JUDICIAL CIRCUIT, IN AND
FOR COLLIER COUNTY, FLORIDA
CASE NO.: 11-2019-CA-002007-0001~xx
SFR SERVICES LLC A/A/O
PAUL AND LOIS CHARLEBOIS,
Plaintiff,
VS.
FIRST PROTECTIVE INSURANCE
COMPANY DBA FRONTLINE INSURANCE,
Defendant.
f
DEFENDANT FIRST PROTECTIVE INSURANCE COMPANY'S
MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF’S
DISCOVERY REQUESTS AND SUPPORTING MEMORANDUM OF LAW
Defendant First Protective Insurance Company, by and through
undersigned counsel and pursuant to Rule 1.280(c) of the Florida
Rules of Civil Procedure, respectfully moves this Court for the
entry of a protective order protecting defendant from being
required to answer and respond to (1) Plaintiff’s First Requests
for Admissions to Defendant, (2) Plaintiff’s First Set of
Interrogatories to Defendant, (3) Plaintiff’s First Requests for
Production to Defendant and (4) being required to prepare and
produce for deposition defendant’s corporate representative and
field adjuster! (hereafter “Plaintiff’s Discovery Requests”) on
1 Plaintiff served defendant with Plaintiff’s Request for
Depositions. In the Request, plaintiff seeks to depose
plaintiff's corporate representative and field adjuster within 60
SHEEHE & ASSOCIATES, P.A. * ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131
a
Mtn. Prot.Order.Discov.Req.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/26/2019 05:13:06 PMthe grounds that (1) defendant has filed Defendant First
Protective Insurance Company's Motion to Dismiss and Compel
Appraisal and Stay and Supporting Memorandum of Law; and (2) it
would be an undue burden and expense if defendant was required to
respond to Plaintiff’s Discovery Requests in light of the fact
that defendant has filed Defendant First Protective Insurance
Company's Motion to Dismiss and Compel Appraisal and Stay and
Supporting Memorandum of Law. In support of defendant's motion,
defendant First Protective Insurance Company states as follows:
I. BACKGROUND
1. On or about June 3, 2019, plaintiff’s complaint
was served upon defendant First Protective Insurance Company.
2. On or about June 24, 2019, defendant served
Defendant First Protective Insurance Company's Motion to Dismiss
and Compel Appraisal and Stay and Supporting Memorandum of Law on
the grounds that the relevant homeowners insurance policy
contains a mandatory appraisal provision once invoked, and
defendant is seeking appraisal.
3. On June 26, 2019, plaintiff served Plaintiff's
Discovery Requests on defendant.
4, Defendant First Protective Insurance Company
respectfully submits that since Defendant First Protective
Insurance Company's Motion to Dismiss and Compel Appraisal and
days.
SHEEHE & ASSOCIATES, P.A,. + ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131
Mtn, Prot .Order.Discov.Req.Stay is pending before this Court, defendant First Protective
Insurance Company should not be required to incur the undue
burden and expense of answering and responding to Plaintiff's
Discovery Requests.
5. In addition, defendant does not wish to waive
defendant's appraisal rights under the law in Florida since
defendant’s participation in discovery could act as a waiver of
defendant First Protective Insurance Company’s appraisal rights.
6. Defendant First Protective Insurance Company
respectfully requests that this Court enter a protective order
protecting defendant from being required to answer and respond to
Plaintiff’s Discovery Requests until after a ruling on Defendant
First Protective Insurance Company's Motion to Dismiss and Compel
Appraisal and Stay is entered.
II. SUPPORTING MEMORANDUM OF LAW
7. Rule 1.280(c) of the Florida Rules of Civil Procedure
provides that:
(c) Protective Orders. ----Upon 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, including one or more of the
following: (1) that the discovery not be had;
(2) that the discovery may be had only on
specified terms and conditions, including a
designation of the time or place; (3) that the
discovery may be had only by a method of
SHEEHE & ASSOCIATES, P.A,.* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33231
3
Mtn. Prot .Order.Discov.Req.discovery other than that selected by the
party seeking discovery; (4) that certain
matters not be inquired into, or that the
scope of the discovery be limited to certain
matters;(5) that discovery be conducted with
no one present except persons designated by
the court; (6) that a deposition after being
sealed be opened only by order of the court;
(7) that a trade secret or other confidential
research, development, or commercial
information not be disclosed or be disclosed
only in a designated way; and (8) that the
parties simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the
court. If the motion for a protective order
is denied in whole or in part, the court may,
on such terms and conditions as are just,
order that any party or person provide or
permit discovery. The provisions of rule
1.380(a) (4) apply to the award of expenses
incurred in relation to the motion.
8. The Trial Court has the authority to regulate as well
as to prevent the taking of depositions and discovery. Deltona
Corp. ‘v. ‘Bailey, 336 So. 2d 1163 (Fla. 1976). Florida Courts have
long recognized that “discovery of any type can be limited by
protective order to protect a party from annoyance,
embarrassment, oppression, or undue burden or expense.” Charlton
v. Tennant, 365 So. 2d 418, 419 (Fla. 2nd DCA 1978). See also,
Jerry's’ ‘South, Inc. v. Morran, 582 So. 2d 803, 805 (Fla. 1st DCA
1991).
9. Participation in discovery may constitute a waiver of
defendant First Protective Insurance Company’s appraisal rights.
More specifically, defendant First Protective Insurance Company
SHEEHE & ASSOCIATES, P.A..* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131
4
Mtn. Prot .Order.Discov.Req.will be harmed if defendant is required to actively participate
in discovery in this lawsuit, pending this Court’s ruling on
Defendant First Protective Insurance Company's Motion to Dismiss
and Compel Appraisal and Stay, because defendant will be required
to participate in an activity that is inconsistent with
appraisal. The Supreme Court of Florida in ‘Raymond James Fin.
‘Servs:, Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005) explained
that participation in litigation may act as a waiver of a party’s
right to appraisal. More specifically, in .Raymond James -Fin.
Servs., Inc., the Court explained:
We have held that under both the Federal
Arbitration Act and Florida's Arbitration Code
that there are three elements for courts to
consider in ruling on a motion to compel the
arbitration of the given dispute: (1) whether a
valid written agreement to arbitrate exists; (2)
whether an arbitrable issue exits; and (3) whether
the right to arbitration was waived. (Citation
omitted.)
We have: ‘long held that a party's contract rights
may be waived by actually participating in a
lawsuit or taking aétion inconsistent with that
right. Klosters Rederi A/S v. Arison Shipping Co.,
280 So. 2d 678, 680 (Fla. 1973).
In our decisions we have not held that there is a
requirement for proof of prejudice in order for
there to be an effective waiver of the right to
arbitrate. We have defined "waiver" as the
voluntary and intentional relinquishment of a
known right or conduct which implies the voluntary
and intentional relinquishment of a known right.
Id. at 711. (emphasis added).
10. Courts in Florida have held that where parties
SHEEHE & ASSOCIATES, P.Ay * ONE BISCAYNE TOWER, SUITE 1650, 2 8. BISCAYNE BLVD., MIAMI, FLORIDA 33131
Mtn. Prot .Order.Discov.Req.voluntarily, actively participate in litigation, they waive their
right to arbitration or appraisal. See, e.g., Estate: of. Orlanis
vw. Oakwood Terrace Skilled Nursing ‘and Rehab. Ctr., 2007 WL
2428426 *1 (Fla. 3d DCA, Aug. 29, 2007); Coastal Sys. Dév.; Inc.
v. Bunnell Found. Inc., 963 So. 2d 722, 724 (Fla. 3d DCA 2007);
Shoma Dev. Corp. v. Rodriquez, 730 So. 2d 838, 839 (Fla. 3d DCA
1999); Gray Mart, ‘Inc. v. Fireman's ‘Fund Ins: Co., 703 So. 2d
1170, 1172-73 (Fla. 3d DCA 1997);
Ass'n, Inc., 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981). Seville
Condo. v. Clearwatér Dev. Corp:, 340 So. 2d 1243, 1245 (Fla. 2d
DCA 1976) (“The prosecution or defense of a lawsuit on issues
subject to arbitration may constitute a waiver” referencing
Gettles v. Commercial Bank at Winter Park, 276 So.2d 837 (Fla.
4th DCA 1973) and Mike ‘Bradford-& Co. vi ‘Gulf Statés Stéél Co.,
184 So.2d 911 (Fla. 3d DCA 1966).
11. In the instant case, defendant First Protective
Insurance Company has demonstrated that it would create an undue
burden and expense if defendant was required to answer and
respond to Plaintiff’s Discovery Requests prior to this Court’s
ruling on Defendant First Protective Insurance Company's Motion
to Dismiss and Compel Appraisal and Stay and would be a potential
waiver of defendant First Protective Insurance Company’s right to
appraisal if defendant was required to participate in discovery
prior to this Court’s ruling on Defendant First Protective
SHEEHE & ASSOCIATES, P.A.,* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33132
6
Mtn. Prot .Order.Discov.Req.Insurance Company's Motion to Dismiss and Compel Appraisal and
Stay. Defendant First Protective Insurance Company respectfully
submits that defendant First Protective Insurance Company has
demonstrated “good cause” under Rule 1.280(c) of the Florida
Rules of Civil Procedure.
IIr. CONCLUSION
For the foregoing reasons, defendant First Protective
Insurance Company respectfully requests that this Court grant
defendant’s motion for protective order.
Respectfully submitted,
SHEEHE & ASSOCIATES, P.A.
Attorneys for Defendant
First Protective Insurance Company
One Biscayne Tower - Suite 1650
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 379-3515
Facsimile: (305) 379-5404
Primary E-Mail:
psheehe@sheeheandassociates.com
kfultz@sheeheandassociates.com
ishéehe@sheeheandassociates.com
Secondary E-mail
-E-filing@sheeheandassociates .com
BY: PHILLIP J. SHEEHE
Florida Bar Number 259128
KAREN D.. FULTZ
Florida Bar Number 112497
JOHANNA E. SHEEHE
Florida Bar Number 0119383
ts/ Johanna BE. Sheehe
SHEEHE & ASSOCIATES, P.A, * ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131
7
Mtn. Prot .Order.Discov.Req.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of Defendant
First Protective Insurance Company’s Motion for Protective Order
Regarding Plaintiff’s Discovery Requests and Supporting Memorandum
of Law was served by E-mail using the Florida Courts E-Filing
Portal and upon Joshua Whisler, Esq. (Service@whisletlawfirm.com) ,
Whisler Law Firm, P.A., 1909 Tyler Street Suite 502, Hollywood,
Florida 33020 this 26th day of July, 2019
/s/ Johanna EB. Sheehe
ATTORNEY —
SHEEHE & ASSOCIATES, P.A,.* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131
Mtn. Prot Order .Discov.Req.
Preview
Filing # 93256345 E-Filed 07/26/2019 05:13:06 PM IN THE CIRCUIT COURT OF THE 20% JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 11-2019-CA-002007-0001~xx SFR SERVICES LLC A/A/O PAUL AND LOIS CHARLEBOIS, Plaintiff, VS. FIRST PROTECTIVE INSURANCE COMPANY DBA FRONTLINE INSURANCE, Defendant. f DEFENDANT FIRST PROTECTIVE INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF’S DISCOVERY REQUESTS AND SUPPORTING MEMORANDUM OF LAW Defendant First Protective Insurance Company, by and through undersigned counsel and pursuant to Rule 1.280(c) of the Florida Rules of Civil Procedure, respectfully moves this Court for the entry of a protective order protecting defendant from being required to answer and respond to (1) Plaintiff’s First Requests for Admissions to Defendant, (2) Plaintiff’s First Set of Interrogatories to Defendant, (3) Plaintiff’s First Requests for Production to Defendant and (4) being required to prepare and produce for deposition defendant’s corporate representative and field adjuster! (hereafter “Plaintiff’s Discovery Requests”) on 1 Plaintiff served defendant with Plaintiff’s Request for Depositions. In the Request, plaintiff seeks to depose plaintiff's corporate representative and field adjuster within 60 SHEEHE & ASSOCIATES, P.A. * ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131 a Mtn. Prot.Order.Discov.Req. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/26/2019 05:13:06 PMthe grounds that (1) defendant has filed Defendant First Protective Insurance Company's Motion to Dismiss and Compel Appraisal and Stay and Supporting Memorandum of Law; and (2) it would be an undue burden and expense if defendant was required to respond to Plaintiff’s Discovery Requests in light of the fact that defendant has filed Defendant First Protective Insurance Company's Motion to Dismiss and Compel Appraisal and Stay and Supporting Memorandum of Law. In support of defendant's motion, defendant First Protective Insurance Company states as follows: I. BACKGROUND 1. On or about June 3, 2019, plaintiff’s complaint was served upon defendant First Protective Insurance Company. 2. On or about June 24, 2019, defendant served Defendant First Protective Insurance Company's Motion to Dismiss and Compel Appraisal and Stay and Supporting Memorandum of Law on the grounds that the relevant homeowners insurance policy contains a mandatory appraisal provision once invoked, and defendant is seeking appraisal. 3. On June 26, 2019, plaintiff served Plaintiff's Discovery Requests on defendant. 4, Defendant First Protective Insurance Company respectfully submits that since Defendant First Protective Insurance Company's Motion to Dismiss and Compel Appraisal and days. SHEEHE & ASSOCIATES, P.A,. + ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131 Mtn, Prot .Order.Discov.Req.Stay is pending before this Court, defendant First Protective Insurance Company should not be required to incur the undue burden and expense of answering and responding to Plaintiff's Discovery Requests. 5. In addition, defendant does not wish to waive defendant's appraisal rights under the law in Florida since defendant’s participation in discovery could act as a waiver of defendant First Protective Insurance Company’s appraisal rights. 6. Defendant First Protective Insurance Company respectfully requests that this Court enter a protective order protecting defendant from being required to answer and respond to Plaintiff’s Discovery Requests until after a ruling on Defendant First Protective Insurance Company's Motion to Dismiss and Compel Appraisal and Stay is entered. II. SUPPORTING MEMORANDUM OF LAW 7. Rule 1.280(c) of the Florida Rules of Civil Procedure provides that: (c) Protective Orders. ----Upon 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, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of SHEEHE & ASSOCIATES, P.A,.* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33231 3 Mtn. Prot .Order.Discov.Req.discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;(5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a) (4) apply to the award of expenses incurred in relation to the motion. 8. The Trial Court has the authority to regulate as well as to prevent the taking of depositions and discovery. Deltona Corp. ‘v. ‘Bailey, 336 So. 2d 1163 (Fla. 1976). Florida Courts have long recognized that “discovery of any type can be limited by protective order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.” Charlton v. Tennant, 365 So. 2d 418, 419 (Fla. 2nd DCA 1978). See also, Jerry's’ ‘South, Inc. v. Morran, 582 So. 2d 803, 805 (Fla. 1st DCA 1991). 9. Participation in discovery may constitute a waiver of defendant First Protective Insurance Company’s appraisal rights. More specifically, defendant First Protective Insurance Company SHEEHE & ASSOCIATES, P.A..* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131 4 Mtn. Prot .Order.Discov.Req.will be harmed if defendant is required to actively participate in discovery in this lawsuit, pending this Court’s ruling on Defendant First Protective Insurance Company's Motion to Dismiss and Compel Appraisal and Stay, because defendant will be required to participate in an activity that is inconsistent with appraisal. The Supreme Court of Florida in ‘Raymond James Fin. ‘Servs:, Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005) explained that participation in litigation may act as a waiver of a party’s right to appraisal. More specifically, in .Raymond James -Fin. Servs., Inc., the Court explained: We have held that under both the Federal Arbitration Act and Florida's Arbitration Code that there are three elements for courts to consider in ruling on a motion to compel the arbitration of the given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exits; and (3) whether the right to arbitration was waived. (Citation omitted.) We have: ‘long held that a party's contract rights may be waived by actually participating in a lawsuit or taking aétion inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678, 680 (Fla. 1973). In our decisions we have not held that there is a requirement for proof of prejudice in order for there to be an effective waiver of the right to arbitrate. We have defined "waiver" as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right. Id. at 711. (emphasis added). 10. Courts in Florida have held that where parties SHEEHE & ASSOCIATES, P.Ay * ONE BISCAYNE TOWER, SUITE 1650, 2 8. BISCAYNE BLVD., MIAMI, FLORIDA 33131 Mtn. Prot .Order.Discov.Req.voluntarily, actively participate in litigation, they waive their right to arbitration or appraisal. See, e.g., Estate: of. Orlanis vw. Oakwood Terrace Skilled Nursing ‘and Rehab. Ctr., 2007 WL 2428426 *1 (Fla. 3d DCA, Aug. 29, 2007); Coastal Sys. Dév.; Inc. v. Bunnell Found. Inc., 963 So. 2d 722, 724 (Fla. 3d DCA 2007); Shoma Dev. Corp. v. Rodriquez, 730 So. 2d 838, 839 (Fla. 3d DCA 1999); Gray Mart, ‘Inc. v. Fireman's ‘Fund Ins: Co., 703 So. 2d 1170, 1172-73 (Fla. 3d DCA 1997); Ass'n, Inc., 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981). Seville Condo. v. Clearwatér Dev. Corp:, 340 So. 2d 1243, 1245 (Fla. 2d DCA 1976) (“The prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver” referencing Gettles v. Commercial Bank at Winter Park, 276 So.2d 837 (Fla. 4th DCA 1973) and Mike ‘Bradford-& Co. vi ‘Gulf Statés Stéél Co., 184 So.2d 911 (Fla. 3d DCA 1966). 11. In the instant case, defendant First Protective Insurance Company has demonstrated that it would create an undue burden and expense if defendant was required to answer and respond to Plaintiff’s Discovery Requests prior to this Court’s ruling on Defendant First Protective Insurance Company's Motion to Dismiss and Compel Appraisal and Stay and would be a potential waiver of defendant First Protective Insurance Company’s right to appraisal if defendant was required to participate in discovery prior to this Court’s ruling on Defendant First Protective SHEEHE & ASSOCIATES, P.A.,* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33132 6 Mtn. Prot .Order.Discov.Req.Insurance Company's Motion to Dismiss and Compel Appraisal and Stay. Defendant First Protective Insurance Company respectfully submits that defendant First Protective Insurance Company has demonstrated “good cause” under Rule 1.280(c) of the Florida Rules of Civil Procedure. IIr. CONCLUSION For the foregoing reasons, defendant First Protective Insurance Company respectfully requests that this Court grant defendant’s motion for protective order. Respectfully submitted, SHEEHE & ASSOCIATES, P.A. Attorneys for Defendant First Protective Insurance Company One Biscayne Tower - Suite 1650 2 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 379-3515 Facsimile: (305) 379-5404 Primary E-Mail: psheehe@sheeheandassociates.com kfultz@sheeheandassociates.com ishéehe@sheeheandassociates.com Secondary E-mail -E-filing@sheeheandassociates .com BY: PHILLIP J. SHEEHE Florida Bar Number 259128 KAREN D.. FULTZ Florida Bar Number 112497 JOHANNA E. SHEEHE Florida Bar Number 0119383 ts/ Johanna BE. Sheehe SHEEHE & ASSOCIATES, P.A, * ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131 7 Mtn. Prot .Order.Discov.Req.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Defendant First Protective Insurance Company’s Motion for Protective Order Regarding Plaintiff’s Discovery Requests and Supporting Memorandum of Law was served by E-mail using the Florida Courts E-Filing Portal and upon Joshua Whisler, Esq. (Service@whisletlawfirm.com) , Whisler Law Firm, P.A., 1909 Tyler Street Suite 502, Hollywood, Florida 33020 this 26th day of July, 2019 /s/ Johanna EB. Sheehe ATTORNEY — SHEEHE & ASSOCIATES, P.A,.* ONE BISCAYNE TOWER, SUITE 1650, 2 S. BISCAYNE BLVD., MIAMI, FLORIDA 33131 Mtn. Prot Order .Discov.Req.