Travelers Indem. Co. v. Hill
| Decision Date | 01 October 1980 |
| Docket Number | No. 80-586,80-586 |
| Citation | 388 So.2d 648 |
| Parties | TRAVELERS INDEMNITY COMPANY, Petitioner, v. Donald V. HILL, Respondent. |
| Court | Florida District Court of Appeals |
James A. Scott of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for petitioner.
Christopher C. Ford, Tavares, for respondent.
By Petition for Writ of Certiorari, petitioner asks us to hold that the trial court failed to comply with the essential requirements of law when it denied petitioner's motion for the appointment of a commissioner to take a deposition in the state of Ohio.
Respondent Hill, as plaintiff below, had filed a complaint alleging that Petitioner Travelers, as respondent's insurer, had failed to pay a theft loss under a policy of insurance issued by Travelers to Hill. By amended answer, Travelers affirmatively alleged, among other things, that Hill's ex-wife had been jointly entitled to possession of the items allegedly stolen and that she was entitled to enter the premises where the items were located and that she in fact had taken these items pursuant to an Ohio divorce decree, so that no theft had occurred.
As soon as the pleadings were closed, Travelers filed the Motion for Appointment of Commissioner to take the deposition of Shelva Hill, the former wife, alleging the need to take her deposition as a witness who would have knowledge of the removal of the items complained of and that she resided in Ohio. 1 Anticipating the entry of the order, Travelers had set the former wife's deposition for May 16, 1980, in Fremont, Ohio. A pre-trial conference had been called by the court for May 9, 1980, and trial had been set to begin June 9, 1980. No objection to the taking of the deposition appears in the record, nor does the record reveal any motion for protective order nor any showing of good cause why the commissioner should not be appointed or the deposition taken. In fact, in the response requested by us to the petition herein, respondent does not allude to any such motion or showing of cause. By order of May 13, 1980, the trial court denied the appointment of a commissioner without asserting any reason therefor and without reference to any showing of good cause. We stayed the cause pending these proceedings.
Petitioner asserts that the trial court departed from the essential requirements of law when it denied this very substantial right, that the testimony of the witness is essential to its defense and that there would be no adequate remedy upon appeal from a final judgment. Respondent urges us to leave the trial court's order undisturbed because: 1) there was no showing made below that an Ohio resident can be compelled to testify before a commissioner appointed by a Florida court; 2) the trial court has the discretion to deny discovery for good cause shown; and 3) if the trial court was wrong, there is an adequate remedy by appeal.
Disposing of the last point first, both parties correctly recognize that the essential prerequisite to the granting of a petition for certiorari is action by the lower court which constitutes a departure from the essential requirements of law such as will cause material injury to the petitioner throughout the remainder of...
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...Application is then made [to the foreign court] for the process necessary to secure the attendance of the witness." Travelers' Indem. Co. v. Hill, 388 So.2d 648, 650 (1980). Thus, the Michigan subpoena that Lincoln issued against Ms. Kaye-Kibbey could have been used to require her Def. Kaye......
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...it would affect the result.'" Medero v. Florida Power & Light Co., 658 So.2d 566 (Fla. 3d DCA 1995) (quoting Travelers Indemnity Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980)) (emphasis added); see also Lifemark Hospitals of Florida, Inc. v. Hernandez, 748 So.2d 378, 379 (Fla. 3d DCA ......
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...certiorari review of orders denying discovery on several occasions where the harm caused is irreparable. In Travelers Indemnity Co. v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980), the court granted certiorari and quashed a trial court order denying a motion for appointment of a commissioner to ......
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..."no practical way to determine after judgment what the testimony would be or how it would affect the result." Travelers Indem. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980). In this case, the facts concerning the alleged fraudulent appraisal have been extensively litigated and are alr......
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Certiorari Review of Orders Denying Discovery in Civil Cases.
...Gormley was decided about 10 years after the Fifth District offered its justification in Travelers Indemnity Co. v. Hill. In Gormley, 388 So. 2d 648 (Fla. 5th DCA 1980), the Supreme Court, apparently for the first time, held the appellee in a civil case has the burden of proving harmlessnes......
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Certiorari Review of Orders Denying Discovery in Civil Cases.
...The court in Graham also certified conflict with a (factually distinguishable) Fifth District decision, Travelers Indemnity Co. v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980), that will be addressed in the discussion of the Fifth District's cases. The Supreme Court denied review. The en banc d......