Suburban Propane v. Estate of Pitcher
| Decision Date | 21 June 1990 |
| Docket Number | No. 90-441,90-441 |
| Citation | 564 So.2d 1118 |
| Parties | 15 Fla. L. Weekly D1656 SUBURBAN PROPANE, Appellant, v. The ESTATE OF Ralph PITCHER, Appellee. |
| Court | Florida District Court of Appeals |
George P. Roberts, Jr., of Roberts & Reynolds, P.A., West Palm Beach, for appellant.
Joseph A. Vassallo, Lake Worth, for appellee.
Petitioner, Suburban Propane, the employer/carrier (E/C) in this workers' compensation action, asks this court to issue a writ of common law certiorari, thereby quashing an order of the judge of compensation claims which authorized the taking of certain depositions of the E/C's employees. Petitioner asserts that the order is not authorized under Section 440.39(7), Florida Statutes (1989), and that the ordered depositions exceed the scope of discovery as set forth in Section 440.30, Florida Statutes (1989). We agree with both propositions and therefore grant the writ in so far as the requested depositions exceed the allowable scope of discovery.
Ralph Pitcher, an employee of the E/C, died on November 7, 1989, from asphyxiation caused by leaking gas fumes, while filling a propane tank at a customer location. The estate of the decedent thereafter filed a claim for workers' compensation death benefits, which was accepted shortly afterward by the E/C, and several checks for such benefits were in fact issued to the decedent's next of kin. There remained, however, a pending issue regarding the amount of the decedent's average weekly wage (AWW).
Thereafter, the estate sought to depose eight fellow employees of the deceased regarding not only the deceased's AWW, but also regarding the particular job the deceased was performing when he met his untimely death. The E/C moved for protective order, which was denied. The judge's order specifically allowed the estate to delve into matters relating to the deceased's AWW; the location and area of the particular job where the deceased sustained his untimely death; the responsibilities and duties of the job that the deceased was performing for the employer; the records relating to the installation, maintenance, repair and/or records kept in connection with the customer location where the deceased died; who made the records related to the installation, maintenance, repair, and reports kept in connection with the customer location where the deceased died; and who possessed copies of the records related to the installation, maintenance, and repair kept in connection with the customer location where the deceased died. It is from this order that the E/C seeks relief.
The proper standard for granting a petition for a writ of certiorari is a departure from the essential requirements of law that cannot be remedied on final appeal and thus may cause continuing harm or result in a miscarriage of justice. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); Combs v. State, 436 So.2d 93 (Fla.1983). It is well established that interlocutory orders dealing with discovery proceedings may be reviewed by certiorari. West Volusia Hosp. Auth. v. Williams, 308 So.2d 634, 636 (Fla. 1st DCA 1975).
It is the estate's contention that Section 440.39(7), Florida Statutes (1989), requires the E/C to cooperate by allowing the depositions. That section provides:
The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose. Such documents and results of such inspections shall not be used or disclosed for any other purpose.
However, because petitioner has admitted that it is on a fishing expedition to establish employer liability, it certainly cannot be said the depositions involve an investigation or prosecution of a claim or potential claim against a third-party tortfeasor. 1 Thus, the duty to cooperate set forth in section 440.39(7) does not attach in the instant case, 2 and any order requiring it to apply constitutes a departure from the essential requirements of law.
Moreover, the requested depositions are generally outside the scope of discovery allowed in workers' compensation cases. Section 440.30, Florida Statutes (1989), provides:
Depositions of witnesses or parties ... may be taken and may be used in connection with proceedings under the Workers' Compensation Law ... for the same purposes, including the purposes of discovery, and subject to the same rules; all as now or hereafter prescribed by law or by rules of court governing the taking and use of such depositions in civil actions at law in the circuit courts of this state.
Florida Rule of Civil Procedure 1.280(b)(1) establishes the scope of discovery in civil actions. It states: "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action[.]" (Emphasis added.) Here, the only pending issue in the claim is the amount of the deceased's AWW. Thus, questions concerning the location and areas of the particular job where the deceased died, his job duties and responsibilities, and records regarding installation, maintenance, and repair of the propane tank clearly are not relevant to the only pending issue--AWW. Consequently, because the judge's order authorized discovery of matters other than AWW, it exceeded the scope of discovery allowed in workers' compensation cases, and must be quashed to that extent.
In view of our disposition of this case on the above bases, we do not consider other related issues such as: (1) whether Section 440.39(7) encompasses depositions in addition to the discovery procedures specified in the statute, i.e., production of documents and inspection of premises; and (2) whether the employer's duty of cooperation under the statute extends to the claimant's fellow employees.
Because the judge's order constitutes a departure from the essential requirements of the law that cannot be remedied on final appeal, the petition is granted to the extent discovery is authorized into areas other than AWW.
NIMMON, J., and THOMPSON, FORD L. (Ret.), Associate Judge, concur.
I concur with that portion of the majority's opinion approving the lower court's order directing discovery of the items relating to the employee's average weekly wage (AWW). I see no basis, however, on which the writ should be issued as to the other information sought.
In support of its petition for writ of certiorari, the E/C makes essentially three arguments. First, because the statute (Section 440.39(7), Florida Statutes (1989)), which requires the employee, employer, and carrier to cooperate with each other by producing nonprivileged documents, is silent regarding the taking of depositions, the order directing such depositions for the purpose of producing nonprivileged documents is a departure from the essential requirements of the law. Second, in seeking discovery of all items, with the exception of those related to the decedent's AWW, respondent is engaged in a mere "fishing expedition" to obtain information that would assist the claimant in filing only a wrongful death action against the employer. Third, the taking of depositions is, pursuant to Section 440.30, Florida Statutes (1989), governed by the Florida Rules of Civil Procedure, and rule 1.280(b)(1) thereof limits the scope of discovery to "any matter, not privileged, that is relevant to the subject matter of the pending action," 1 and the only issue remaining in controversy between the parties is the correct determination of the deceased employee's AWW. Therefore, that portion of the judge's order permitting the taking of depositions as to all other matters represents a departure from the essential requirements of the law in that it allows discovery of matters which are not relevant to the subject matter of the pending action, in violation of rule 1.280(b)(1).
Turning to petitioner's first point, I cannot agree that the legislature intended by enacting section 440.39(7) to foreclose the taking of depositions that could lead to the production of nonprivileged documents which might be useful in prosecuting a claim against a third-party tortfeasor. Petitioner has candidly admitted there is neither any case law in which the statute has been interpreted, nor is there any recorded legislative interpretation of this subsection, which was added to section 440.39 in 1984. See Ch. 84-267, § 9, Laws of Fla. In my judgment, petitioner reads this amended subsection much too narrowly. I consider that section 440.39(7) should be read in pari materia with both Florida Workers' Compensation Rule of Procedure 4.090(a), permitting the depositions of witnesses or parties to "be taken and ... used in connection with proceedings under Chapter 440, Florida Statutes[,]" and with section 440.30, authorizing the taking of depositions "for the same purposes ... governing the taking and use of such depositions in civil actions at law in the circuit courts of this state."
Thus, after considering rule 4.090(a) and section 440.30 in pari materia with the provisions of section 440.39(7), I am of the view that the most logical interpretation of subsection (7) is that depositions may be permitted to assist in the production of nonprivileged documents pursuant to the legislative requirement that the parties have a duty to cooperate with one another in assisting the bringing of potential claims against third-party tortfeasors. I therefore conclude that as to the first issue raised, the petitioner has failed to demonstrate any departure from the essential requirements of the law in that the order obviously authorizes the taking of depositions for such objective.
Considering next petitioner's argument that the claimant's intention in seeking discovery...
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