Coral Gables Chiropractic Pllc v. United Automobile Insurance Co.

Third District Court of Appeal
State of Florida

Opinion filed March 16, 2016.
Not final until disposition of timely filed motion for rehearing.

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No. 3D14-2307
Lower Tribunal Nos. 11-12309 SP and 13-297 AP
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Coral Gables Chiropractic PLLC, a/a/o Ricardo Olivera,
Petitioner,

vs.

United Automobile Insurance Company,
Respondent.

On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Appellate Division, Michael A. Genden, Leon M. Firtel, and Gill S.
Freeman, Judges.

George A. David, for petitioner.

Lara J. Edelstein, for respondent.

Before WELLS, LAGOA, and SCALES, JJ.

LAGOA, J.

In a personal injury case, Coral Gables Chiropractic, PLLC, a/a/o Ricardo

Olivera (“Gables Chiropractic”), petitions this Court for a second-tier writ of
certiorari, seeking to quash the circuit court appellate division’s order compelling

discovery as to the reasonableness of fees charged for medical services rendered to

the insured, Ricardo Olivera (“Olivera”). Because Gables Chiropractic has failed

to meet the threshold requirement of showing that the circuit court’s order creates

irreparable harm, we dismiss the petition for writ of certiorari for lack of

jurisdiction. See Bd. of Trs. of the Internal Improvement Trust Fund v. Am. Educ.

Enters., LLC, 99 So. 3d 450, 454–55 (Fla. 2012) (stating that irreparable harm is a

condition precedent to invoking a district court's certiorari jurisdiction); Jaye v.

Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998) (“[I]t is settled law that, as a

condition precedent to invoking a district court's certiorari jurisdiction, the

petitioning party must establish that it has suffered an irreparable harm that cannot

be remedied on direct appeal.”).

I. FACTUAL & PROCEDURAL HISTORY

Gables Chiropractic sued the Respondent, United Automobile Insurance

Company (“UAIC”), seeking to recover personal injury protection (“PIP”) benefits

for medical services rendered to Olivera as a result of an automobile accident.

UAIC denied that the medical bills were “reasonable, related, and necessary,” and

asserted that it already issued payments in amounts of $2,873.12 for PIP benefits

with applicable interest, pursuant to section 627.736(5)(a)(2), Florida Statutes

(2011). UAIC sought to depose Gables Chiropractic’s corporate representative to

no avail, and consequently filed a motion for rule to show cause to compel the

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deposition. On July 12, 2013, the trial court found that because UAIC paid

pursuant to the fee schedule, any further discovery as to the treatment or charges

being reasonable, related, or necessary was irrelevant.

UAIC filed a petition for writ of certiorari in the circuit court appellate

division arguing that it was entitled to depose Gables Chiropractic’s corporate

representative. The circuit court appellate division issued an opinion on May 19,

2014, quashing the trial court’s order and remanding the matter to allow discovery,

but only as to the reasonableness of the charges. The panel found that UAIC had

waived discovery as to whether the medical bills were medically necessary and

related to Olivera’s automobile accident. UAIC subsequently filed a petition for

writ of certiorari in this Court on June 5, 2014, asserting that this latter portion of

the circuit court appellate division’s opinion departed from the essential

requirements of law. This Court dismissed UAIC’s petition on June 11, 2014,

citing Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086

(Fla. 2010). See United Auto. Ins. Co. v. Coral Gables Chiropractic PLLC, 162.

So. 3d 1023 (Fla. 3d DCA 2014) (table).

Despite this Court’s dismissal of UAIC’s earlier petition, Gables

Chiropractic now has filed its own writ of certiorari in this Court, seeking to quash

the same circuit court appellate division opinion regarding its determination that

UAIC could conduct discovery on the issue of the reasonableness of the charges.

Gables Chiropractic argues that the circuit court appellate division’s opinion

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departs from the essential requirements of law because UAIC’s failure to dispute

the reasonableness of charges in UAIC’s responses to Gables Chiropractic’s

request for production and interrogatories preluded UAIC from contesting and

seeking discovery regarding reasonableness. We disagree.

II. ANALYSIS

“A writ of certiorari is an extraordinary type of relief that is granted in very

limited circumstances.” Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA

2014). To be entitled to certiorari, the petitioner is required to establish the

following three elements: “‘(1) a departure from the essential requirements of the

law, (2) resulting in material injury for the remainder of the case (3) that cannot be

corrected on postjudgment appeal.’” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla.

2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla.

2004)). “The last two elements, often referred to as ‘irreparable harm,’ are

jurisdictional. If a petition fails to make a threshold showing of irreparable harm,

this Court will dismiss the petition.” Nucci v. Target Corp., 162 So. 3d 146, 151

(Fla. 4th DCA 2015) (citing Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 157

(Fla. 4th DCA 1996)).

Significantly, certiorari jurisdiction is not available to review every

erroneous discovery ruling. See Bd. of Trs. of the Internal Improvement Trust

Fund, 99 So. 3d at 456; Nucci, 162 So. 3d at 151. The Florida Supreme Court, and

“other district courts of appeal have restated with frequency that overbreadth is not

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sufficient, nor is it a basis, for certiorari relief.” Bd. of Trs. of the Internal

Improvement Trust Fund, 99 So. 3d at 456 (emphasis in original). Such

jurisdiction will not be granted “for orders that deny ‘a party’s overbreadth or

burdensomeness objections to discovery.’” Id. (quoting Katzman v. Rediron

Fabrication, Inc., 76 So. 3d 1060, 1062 (Fla. 4th DCA 2011)). The same principle

has been held to generally bar review of relevancy objections to discovery.

Killinger v. Guardianship of Grable, 983 So. 2d 30, 32 (Fla. 5th DCA 2008)

(“While certiorari may be used to review pre-trial orders compelling discovery, it

is generally not appropriate simply based on an argument that the discovery

request is overbroad, irrelevant, or burdensome.”). Here, UAIC seeks to

depose Gables Chiropractic’s corporate representative regarding the

reasonableness of the charges incurred for Olivera’s medical services. Considering

that Olivera did not obtain chiropractic treatment until over a year after the date of

his automobile accident, UAIC is surely entitled to determine whether Gables

Chiropractic’s charges for his medical services were reasonable. Because section

627.736(4)(b)(6) allows an insurer to dispute the reasonableness of charges at any

time, including after payment of the claim, the fact that UAIC issued payments in

amounts of $2,873.12 for PIP benefits does not dispose of the issue of the charges’

reasonableness.

Moreover, Gables Chiropractic has failed to establish any showing of good

cause as to why the circuit court appellate division’s opinion permitting this

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discovery should be quashed. Gables Chiropractic does not assert that they will

suffer a material injury of an irreparable nature if their corporate representative is

deposed, and make no mention of any privileged information being at issue

whatsoever. “[W]e agree with those who suggest that erroneous orders that require

overbroad discovery of nonprivileged documents should be subjected to certiorari

review more cautiously than erroneous orders requiring discovery of confidential

or privileged matters.” Megaflight, Inc. v. Lamb, 749 So. 2d 594, 595 (Fla. 5th

DCA 2000); accord Nucci, 162 So. 3d at 151.

Because there is no privileged information at issue here, it is clear that

granting Gables Chiropractic’s petition for second-tier certiorari relief is not

merited. We conclude that UAIC “may obtain discovery regarding any matter, not

privileged, that is relevant to the subject matter of the pending action, whether it

relates to the claim or defense of the party seeking discovery or the claim or

defense of any other party.” Fla. R. Civ. P. 1.280(b)(1).

III. CONCLUSION

Because the requested deposition and associated information are relevant to

the disputed issue of reasonableness, and Gables Chiropractic has failed to

demonstrate irreparable harm through its disclosure, we conclude that the

information is discoverable, and that the circuit court appellate division did not err

in quashing the trial court’s order. We reiterate that overbreadth alone is not a

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basis on which second-tier certiorari jurisdiction will be granted. Accordingly,

Gables Chiropractic’s petition for second-tier certiorari is dismissed.

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