National Sec. Fire & Cas. Co. v. Dunn, 5D99-754.
| Decision Date | 10 March 2000 |
| Docket Number | No. 5D99-754.,5D99-754. |
| Citation | 751 So.2d 777 |
| Parties | NATIONAL SECURITY FIRE & CASUALTY COMPANY, etc., Petitioners, v. Jeffrey DUNN, Respondent. |
| Court | Florida District Court of Appeals |
Richard E. Ramsey and Michael R. D'Lugoof of Wicker, Smith, Tutan, O'Hara, McCoy & Ford, P.A., Orlando, for Petitioners.
Joseph R. Flood, Jr., and Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for Respondent.
In National Security Fire & Casualty Co. v. Dunn, 705 So.2d 605, 606-607 (Fla. 5th DCA 1997) ("Dunn V"), this court quashed the circuit court's order allowing Dunn to inspect National's files regarding 38 bad faith claims filed against National which were previously identified in interrogatories. This court held that the contents of the files were protected by the work product privilege, and that Dunn had failed to show either his need for the files or his inability to obtain equivalent information without undue hardship.
We are now faced with Dunn VI. National again seeks certiorari, this time to review three discovery orders, all of which National claims constitute departures from the essential requirements of law causing irreparable harm.
Certiorari is the appropriate remedy when a discovery order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal. See Allstate Insurance Co. v. Langston, 655 So.2d 91 (Fla.1995). See also Compton v. West Volusia Hosp. Authority, 727 So.2d 379 (Fla. 5th DCA 1999). However, as the supreme court in Langston noted, not every erroneous discovery order creates certiorari jurisdiction. 655 So.2d at 94. Trial courts have broad discretion in discovery matters, and discovery orders will only be overturned where the court has abused that discretion. See Church of Scientology Flag Service v. Williams, 671 So.2d 840 (Fla. 5th DCA 1996); Humana of Florida, Inc. v. Evans, 519 So.2d 1022 (Fla. 5th DCA 1987).
As in Dunn V, whether Dunn should be allowed to examine National's claims files is at issue. The trial court, after receipt of an affidavit in which counsel for Dunn asserted that the claims files were of significant relevance to prove a general business practice of bad faith claims, agreed with Dunn and found that Dunn had shown his inability to obtain the substantial equivalent to the claims files elsewhere without undue hardship.
In his attorney's affidavit, Dunn made no allegations that he had taken any steps subsequent to Dunn V to find evidence to support a claim of bad faith based on business custom. Rather, the affidavit focuses on Dunn's need for the information and ignores the requirement that a showing be made that the substantial equivalent information cannot be obtained without undue hardship. The importance of the work product privilege must not be lightly invaded. See Intercontinental Properties, Inc. v. Samy, 685 So.2d 1035 (Fla. 3d DCA 1997). This court's opinion in Dunn V clearly held that no showing of need or inability to obtain the substantial equivalent without undue hardship had been made, although Dunn earlier made the same arguments, albeit not in affidavit form. Although Dunn has since filed an affidavit asserting need, he has taken none of the actions suggested by this court in Dunn V.1 Therefore, there has been no change in the status of the case which would require a different conclusion from that reached in Dunn V. Accordingly, the petition for writ of certiorari is granted and the lower court's order compelling discovery of the claims file quashed.2
The next issue in the petition relates to whether Dunn should be allowed to take the depositions of two of National's employees. National argues that the depositions should be stayed until there is an operative complaint pending, and cites Florida Rules of Civil Procedure 1.050 and 1.290(a)(1). This is an example of the problems which arise when the cart is put before the horse; in order to state a cause of action for bad faith based on business practices, Dunn wants to take discovery, but because there is no pending complaint, there is no way to establish the scope of the discovery to be allowed. Nonetheless, where a complaint has been dismissed with leave to amend, we think that the decision of whether to allow depositions prior to the filing of the amended complaint should be left to the sound discretion of the trial judge.3
Finally, we address...
To continue reading
Request your trial
-
Royal Caribbean Cruises, Ltd. v. Cox
...harm to permit certiorari review, even if the order departs from the essential requirements of law); Nat'l Sec. Fire & Cas. Co. v. Dunn, 751 So.2d 777 (Fla. 5th DCA 2000) (financial harm is generally insufficient harm to justify certiorari review). See also Bay N Gulf, Inc. v. Anchor Seafoo......
-
Tanchel v. Shoemaker
...in discovery matters and discovery orders will only be overturned where the court has abused that discretion. Nat'l Sec. Fire & Cas. Co. v. Dunn, 751 So.2d 777 (Fla. 5th DCA 2000). This Court has, however, "embrace[d] the Supreme Court's conclusion that litigants are not entitled to carte b......
-
Vesta Fire Ins. Corp. v. Figueroa
...omitted). Counsel for petitioner responded that, Brown notwithstanding, under this court's opinion in National Security Fire and Casualty Co. v. Dunn, 751 So.2d 777 (Fla. 5th DCA 2000), Figueroa should be required not only to show "need" but also to demonstrate an effort to obtain the subst......
- Soirelus v. State, 5D99-2384.
-
Summons, service of process, and e-mail service
...an action commences. Whether to allow such depositions is within the discretion of the court. [ National Sec. Fire & Cas. Co. v. Dunn, 751 So. 2d 777 (Fla. 5th DCA 2000).] §7:83 Drop Service Drop service is exactly what the term states, leaving process at the home of the person to be served......
-
Florida family law rules of procedure
...pending pursuant to rule 1.050, is to be left to the sound discretion of the trial court. National Security Fire & Casualty Co v. Dunn , 751 So.2d 777 (Fla. 5th DCA 2000). 18.9 TRANSFERS OF ACTIONS 12.060 (a) Transfers of Courts. If it should appear at any time that an action is pending in ......