Florida Cypress Gardens, Inc. v. Murphy, 85-1095

• Decision Date: 19 June 1985
• Docket Number: No. 85-1095,85-1095
• Citation: 471 So.2d 203,10 Fla. L. Weekly 1544
• Parties: 10 Fla. L. Weekly 1544 FLORIDA CYPRESS GARDENS, INC., Petitioner, v. Clarence W. MURPHY and Frances Murphy, Respondents.
• Court: Florida District Court of Appeals

Page 203

471 So.2d 203

10 Fla. L. Weekly 1544

FLORIDA CYPRESS GARDENS, INC., Petitioner, v. Clarence W. MURPHY and Frances Murphy, Respondents.

No. 85-1095.

District Court of Appeal of Florida Second District.

June 19, 1985.

Ashby L. Camp of Cooper, Rissman & Weisberg, P.A., Orlando, for petitioner.

R. Scott Bunn of Straughn, Sharit, Bunn & Chilton, P.A., Winter Haven, for respondents.

GRIMES, Acting Chief Judge.

By petition for writ of certiorari, Florida Cypress Gardens, Inc., seeks review of an order compelling production from the investigation file of the adjuster for its liability insurer. Orders requiring discovery are proper subjects for certiorari since an erroneously compelled disclosure, once made, may constitute irreparable harm which cannot be remedied by way of appeal. Manatee County v. Estech General Chemicals Corp., 402 So.2d 75 (Fla. 2d DCA 1981); Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978).

Clarence W. Murphy and Frances Murphy, his wife, sued Cypress Gardens for damages resulting from an accident in which Mr. Murphy was thrown out of a wheelchair while being pushed across a bridge at Cypress Gardens. The Murphys filed a notice of request to produce photographs of the bridge taken incidental to Cypress Gardens' investigation of the accident and the contents of Cypress Gardens' accident investigation file, excluding correspondence with its attorney. Cypress Gardens objected to the production of these items, and the Murphys filed a motion to compel.

Following the procedure outlined in Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984), the court directed Cypress Gardens to file an affidavit setting forth dates when the items subject to the request for discovery were obtained and the purpose for which they were obtained. Cypress Gardens filed an affidavit of the claims supervisor of Hartford Fire Insurance Company stating that the photographs and the documents in the investigation file were taken by Hartford adjusters in the course of their investigation of Mr. Murphy's accident. The affidavit further stated that these items were obtained because Hartford, as the liability insurer of Cypress Gardens, anticipated that accidents on the property of its insureds produce claims for damages.

The judge found that while the documents and photographs were obtained in anticipation of claims, they were only obtained in the "mere likelihood of litigation," and ordered their production. While the judge scrupulously followed the dictates of Turtle Reef, in so doing he acted contrary to the dictates of the supreme court and this court as well as other district courts of appeal.

In Seaboard Air Line Railroad v. Timmons, 61 So.2d 426 (Fla.1952), the supreme court set forth the basic principles regarding discovery of work product when it said:

[I]t is settled that a party is not entitled, as of right, under Rule 27, or any other rule, to inspect the statements, memoranda, and other documents constituting the "work product" of the opposing party as to the matter which is the subject of the litigation, such as (1) written statements of witnesses relating to the occasion on which the injury occurred; (2) statements or reports from agents, officers or employees of the defendant company relating to the accident; and (3) records, investigation sheets, memoranda, and photographs, relating to the accident, including any and all information, investigation sheets, etc., received by the defendant's attorneys from investigators and adjusters.

61 So.2d at 427-428. The scope of discovery under Common Law Rule 27 referred to by the court was set forth in Common Law Rule 20(b), the text of which has been carried forward almost verbatim into Florida Rule of Civil Procedure 1.280(b)(1). Consistent with the rationale of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), rule 1.280(b)(2) has been added to provide that material otherwise discoverable under rule 1.280(b)(1) but which was prepared in anticipation of litigation may only be discovered upon a showing of undue hardship.

In Winn-Dixie Stores, Inc. v. Gonyea, 455 So.2d 1342 (Fla. 2d DCA 1984), this court held that statements of witnesses concerning a slip and fall on Winn-Dixie's premises which had been obtained by its insurance adjusting firm shortly after the accident were protected from discovery by the work product rule. In City of Sarasota v. Colbert, 97 So.2d 872 (Fla. 2d DCA 1957), the trial court had entered an order authorizing the discovery of the written reports of the city's investigator which had been obtained prior to the service of the required written claim notice upon the city. In...