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Matlack v. Day7/15/2005
Petitioner, Kelly Matlack ["Matlack"], seeks certiorari review of an order denying her motion for protective order. Matlack is a defendant in a civil action filed by the plaintiff-respondent, James A. Day ["Day"]. Day alleges that Matlack negligently operated a motor vehicle that collided with his motor vehicle causing him personal injury. Importantly, he also claims damages for the cancellation of his insurance policy and the increase in premiums under his replacement policy.
Day's counsel served a subpoena duces tecum upon Lynda Lewis, the underwriting team leader for State Farm. State Farm was the insurance carrier for both Day and Matlack on the day of the accident. The subpoena requested that Lewis bring to the deposition:
1. All documents regarding James Day, Kelly Matlack, or their automobile accident.
2. Documents which show premiums charged by the State Farm Insurance Companies for motorists in Brevard County, Florida.
Matlack filed a motion for protective order asserting:
The deposition can serve no purpose to the subject litigation and the requested documents can serve no purpose to the subject litigation. The Deposition is burdensome, harassing and would be irrelevant. The subject litigation does not involve bad faith, nor could a cause of action exist, and therefore the file of an insurance company cannot be discovered.
The trial court denied Matlack's motion for protective order. We grant the writ. Day has no basis to discover material in State Farm's files pertaining to Matlack. See Scottsdale Ins. Co. v. Camara de Comercio Latino-Americana, Inc., 813 So. 2d 250 (Fla. 3d DCA 2002). As Matlack argues, there is no circumstance asserted that would overcome the work product immunity for those documents. As for documents pertaining to Day held by State Farm in its capacity as Day's insurer, we cannot see how the documents could reasonably be calculated to lead to admissible evidence. Presumably, these documents as well as the requested documents pertaining to premiums charged in Brevard County are being sought in connection with Day's claim that the accident caused by Matlack caused Day's insurance to be cancelled and his premiums to increase. First, Florida does not recognize such a damage claim in a tort case. See Southland Const. v. Greater Orlando Aviation, 860 So. 2d 1031, 1034 (Fla. 5th DCA 2003). The absence of foreseeability and causation in such a claim is an impossible obstacle. If State Farm wrongfully cancelled Day's insurance, or if excessive premiums have been charged, Day has separate remedies against the insurer, but they are not an available element of damage against the driver alleged to be at fault in causing the accident. The protective order should have been granted.
WRIT GRANTED.
SAWAYA, J., concurs.
GRIFFIN, J., concurs and concurs specially, with opinion.
THOMPSON, J., dissents, with opinion.
GRIFFIN, J., concurring specially. 5D04-2978
I write to address some of the concerns expressed in the dissent.
The dissent contends we should deny the petition because Matlack did not assert a work product immunity in seeking a protective order directed to State Farm's claim files. But Matlack did make that argument by pointing out to the trial court that Day had no right to the insurer's claim files because this was not a bad faith case. These two arguments are in substance the same. Everybody knows, or should know, that a claim file in a third-party liability case such as this one is not discoverable prior to entry of an excess judgment. Discovery of the defendant insured's claim file maintained by the insurer i
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