McKay v. Great American Ins. Co.

• Decision Date: 23 June 2004
• Docket Number: No. 4D04-1753.,4D04-1753.
• Citation: 876 So.2d 666
• Parties: Robert McKAY, Petitioner, v. GREAT AMERICAN INSURANCE COMPANY, Great American Insurance Company of New York f/k/a American National Fire Insurance Company, SCI Funeral Services of Florida, Inc. d/b/a Menorah Gardens & Funeral Chapels, Service Corporation International, Dr. Sheldon Cohen, Paula Trigueros, Marian Novins, Dan Kossoy, Allen Altschuler, Joan Light, Shirley Eisenberg, Carol Prisco and Gloria Zimmer, Respondents.
• Court: Florida District Court of Appeals

876 So.2d 666

Robert McKAY, Petitioner, v. GREAT AMERICAN INSURANCE COMPANY, Great American Insurance Company of New York f/k/a American National Fire Insurance Company, SCI Funeral Services of Florida, Inc. d/b/a Menorah Gardens

& Funeral Chapels, Service Corporation International, Dr. Sheldon Cohen, Paula Trigueros, Marian Novins, Dan Kossoy, Allen Altschuler, Joan Light, Shirley Eisenberg, Carol Prisco and Gloria Zimmer, Respondents.

No. 4D04-1753.

District Court of Appeal of Florida, Fourth District.

June 23, 2004.

Rehearing Denied July 14, 2004.

Daniel S. Gelber and Walter J. Tache of Zuckerman Spaeder LLP, Miami, for petitioner.

No response required for respondents.

PER CURIAM.

Robert McKay petitions for a writ of certiorari seeking to quash a trial court order compelling him to testify in a civil proceeding despite his Fifth Amendment, privilege against compelled self-incrimination, objection.

On May 13, 2004, this court denied the petition by order. This opinion follows.

"Certiorari will lie to review an order compelling discovery in a civil case over an objection that the order violates the Fifth Amendment privilege against self-incrimination." Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003) (citing Magid v. Winter, 654 So.2d 1037 (Fla. 4th DCA 1995)). The reviewing court must determine whether the trial court's discovery order departed from the essential requirements of law resulting in harm to the petitioner that cannot be remedied on plenary appeal. Id. McKay confessed and pled guilty to charges in a prior criminal proceeding arising from McKay's employment with a cemetery. The charges included allegations of desecration of bodies and other violations of law in the manner in which the cemetery was operated. The negotiated plea agreement in the criminal case provides:

The Defendant will testify truthfully, completely and consistently with his prior statements to Law Enforcement, to any venue in which his testimony is required, both criminal and civil, in connection with the Menorah Gardens Palm Beach case. The State agrees that testimony given pursuant to this section in any venue is given pursuant to F.S. Section 914.04 as set forth herein. Nothing in this section, precludes the Defendant from asserting his Fifth Amendment privilege in any proceeding in order to obtain assurances or clarification that such testimony is indeed given pursuant to the above terms.

McKay and the prosecutor negotiated to include in the agreement the language providing that testimony under the agreement was pursuant to section 914.04, Florida Statutes (2003).

Section 914.04 grants use and derivative use immunity to a witness compelled by subpoena to testify in a criminal proceeding:

No person who has been duly served with a subpoena or subpoena duces tecum shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no testimony so given or evidence so produced shall be received against him upon any criminal investigation or proceeding.

(Emphasis added.)

During discovery proceedings in this civil case, which relates to the offenses at the cemetery, McKay objected on Fifth Amendment grounds when the plaintiffs sought to take his deposition. McKay argued that Section 914.04 does not apply to testimony given in a civil proceeding and that the state lacked authority to grant statutory immunity. The trial court granted plaintiffs' motion to compel McKay to testify according to his plea agreement. The court found the protection of the agreement sufficiently overcame any fear of prosecution justifying the claim of privilege. McKay petitions for certiorari review.

TRANSACTIONAL VERSUS USE/DERIVATIVE USE IMMUNITY

The distinction between transactional and use immunity is important in this case. Use immunity prevents authorities from using the testimony against the witness in any criminal prosecution of the witness. Zile v. State, 710 So.2d 729, 732 (Fla. 4th DCA 1998). Derivative use immunity prohibits the government from using evidence derived from the testimony, including investigatory leads, unless a source for the evidence independent of the compelled testimony can be shown. See Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)

(setting forth independent source rule: "`Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.'") (citation omitted).

In contrast, transactional immunity provides complete immunity for the subject matter of the testimony elicited. Zile, 710 So.2d at 732. Transactional immunity provides significantly broader protection than the Fifth Amendment in certain respects. Kastigar, 406 U.S. at 453, 92 S.Ct. 1653. The Fifth Amendment's sole concern is protection from compelled self-incriminating testimony. Id. The Fifth Amendment does not prevent prosecution for one who invokes it. Id. Transactional immunity, however, does not prevent authorities from using the testimony to prosecute for other transactions.

The statute at issue in this case once provided for both use/derivative use immunity and transactional immunity. See, e.g., Alford v. Cornelius, 380 So.2d 1183 (Fla. 5th DCA)

(to gain transactional immunity, compelled testimony must be relevant and have substantial connection with the subject of the inquiry), rev. denied, 389 So.2d 1107 (Fla.1980). The statute was amended, and transactional immunity was no longer authorized. Meek v. State, 566 So.2d 1318, 1321 n. 1 (Fla. 4th DCA 1990) ("In 1980, section 914.04 provided for both transactional and use immunity. The legislature amended it in 1982 to exclude transactional immunity. Today the statute provides only for use immunity.").

State v. Williams, 487 So.2d 1092 (Fla. 1st DCA 1986), held that the 1982 amendment of the statute meant the state can no longer grant transactional immunity under the statute. Id. at 1094. Williams, however, does not address whether the state can grant transactional immunity as part of a plea agreement. The testimony in Williams fell within the purview of the statute because the witness in that case was subpoenaed to testify in a criminal proceeding. In the absence of a bargained-for plea agreement, the statute's authorization for mere use immunity is controlling. The statute does not expressly prohibit the grant of immunity by agreement.

RELEVANT LAW AND ANALYSIS

McKay's argument relies primarily on language found in Randall v. Guenther, 650 So.2d 1070 (Fla. 5th DCA 1995). In Randall, Walther Guenther filed a civil suit against Anne Randall alleging Randall transferred almost all his assets to her own personal account without his consent. Id. at 1071. The trial court ordered Randall to disclose all the assets she received from Guenther. Randall learned that the state had initiated a criminal investigation into the matter. The trial court granted Randall's motion and restricted the discovery because of the Fifth Amendment issues.

In response, Guenther filed a motion to compel discovery attaching letters from the state attorney purporting to grant Randall use and derivative use immunity under section 914.04 for deposition testimony in the civil case. The trial court ruled that Randall could be compelled to testify because of the grant of immunity. Id. at 1072.

The fifth district granted Randall's petition for a writ of certiorari and quashed the trial court's order. The court found that case law in the area has consistently held that the statute must be construed strictly and that a grant of immunity under the statute must be confined to its parameters. See DeBock v. State, 512 So.2d 164, 167 (Fla.1987),

cert. denied, 484 U.S. 1025, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988) (statute inapplicable to bar disciplinary proceedings); Delisi v. Smith, 423 So.2d 934, 939 (Fla. 2d DCA 1982), rev. denied, 434 So.2d 887 (Fla.1983) (statute inapplicable to civil RICO proceeding). Thus, the statutory immunity could be applied only to testimony given in a criminal proceeding and not to testimony elicited in a civil proceeding. Randall, 650 So.2d at 1072.

The court, however, went on to reject Guenther's contentions that the state's letters were a valid grant of contractual immunity. In so holding, the court made some broad statements suggesting there can be no contractual immunity in Florida. The court seemed to hold that Section 914.04 is the sole means by which the state can grant immunity. Id. The court wrote, "[I]t is well-settled that `immunity from prosecution must derive from a specific statutory or constitutional provision.'" Id. (quoting Stancel v. Schultz, 226 So.2d 456, 459 (Fla. 2d DCA 1969)); see also State v. Schroeder, 112 So.2d 257, 261 (Fla.1959)

(noting that [i]mmunity from prosecution is a creature of statute").

Randall's broad language is dicta because the letters at issue in that case were not enforceable as a contract. No indication is given that the letters were part of a plea agreement or that the letters were bargained for, i.e. with consideration flowing from both sides. See Metellus v. State, 817 So.2d 1009 (Fla. 5th DCA)

(holding that rules of contract law apply to plea agreements), rev. granted, 833 So.2d 774 (Fla.2002). The letters were nudum pactum and unenforceable.

McKay's case is distinguishable. McKay entered a negotiated plea agreement in which he was placed on probation in exchange for his...