GEICO CASUALTY COMPANY, ET AL.,

v.

MSP RECOVERY CLAIMS, ET AL.,

Third District Court of Appeal State of Florida

Opinion filed March 3, 2021. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D20-1506 Lower Tribunal No. 18-42153 ________________

Geico Casualty Company, et al., Petitioners,

vs.

MSP Recovery Claims, et al., Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Veronica A. Diaz, Judge.

A Case of Original Jurisdiction—Prohibition.

Cole, Scott & Kissane, P.A., and Thomas L. Hunker, Selina Patel, Peter D. Weinstein and Michael A. Rosenberg (Fort Lauderdale), for petitioners.

MSP Recovery Law Firm, and John H. Ruiz, Michael O. Mena, Gino Moreno and Andre Vazquez; Armas Bertran Zincone, and J. Alfredo Armas, Eduardo E. Bertran and Francesco A. Zincone, III, for respondents.

Before SCALES, LINDSEY and HENDON, JJ.

SCALES, J.

I.

BACKGROUND FACTS

In December 2018, MSP filed this action against GEICO in the Miami- Dade County Circuit Court. In Count I of MSP’s second amended complaint, MSP seeks a declaration that it is entitled to recover from GEICO payments allegedly made by MSP’s assignors that should have been made by GEICO, the PIP insurer for the assignors’ insureds. In Count II of the second amended complaint, MSP seeks a pure bill of discovery.

3

On August⁷, 2020, MSP served a subpoena duces tecum on nonparty ISO, seeking to depose ISO’s corporate representative and requesting that ISO produce certain “records for all claims where the insuring company or adjuster company appears as [GEICO].” On August 31, 2020, GEICO moved for a protective order as to the non-party subpoena duces tecum, arguing, in part, that the claims records sought by MSP both belonged to GEICO and were protected by the attorney-client and work product privileges.

On September 8, 2020, the trial court conducted a hearing on GEICO’s motion for a protective order. At the hearing, GEICO’s counsel represented to the trial court that: (i) a Master Agreement between GEICO and ISO governed the data sought in MSP’s non-party discovery request to ISO; and (ii) the Master Agreement expressly provided both that the data in ISO’s possession was GEICO’s proprietary information and that the confidentiality provisions contained therein prevented ISO from disclosing the information without GEICO’s consent. GEICO’s counsel, however, did not produce the Master Agreement at that time because counsel had been unable to obtain a redacted copy of the agreement.

On September 15, 2020, the trial court entered an order denying GEICO’s motion for a protective order. In this September 15, 2020 discovery

Also, on October 15, 2020, GEICO filed in the trial court a motion for reconsideration of the September 15, 2020 discovery order, arguing that the trial court did not have the benefit of the Master Agreement between GEICO and ISO. GEICO’s motion for reconsideration included a redacted copy of the Master Agreement for the lower court’s consideration. On December 11, 2020, during the pendency of this matter in this Court, the trial court entered its order denying GEICO’s motion for reconsideration. Therein, the trial court concluded that GEICO’s motion for reconsideration “fails to raise any issues which the Court failed to consider or overlooked.”

II.

ANALYSIS

1 On November 16, 2020, we stayed the discovery order pending further order of this Court.

2 Citing to American Medical Sysems, LLC v. MSP Recovery Claims, Series LLC, 290 So. 3d 548, 549-50 (Fla. 3d DCA 2019), MSP argues that we lack certiorari jurisdiction because, according to MSP, the September 15, 2020 discovery order does not direct non-party ISO to produce the requested discovery, and therefore, GEICO has suffered no irreparable harm. We disagree because the trial court’s discovery order directed that specific discovery be produced. Indeed, but for this Court’s November 16, 2020 stay order, the deposition duces tecum of ISO’s representative would have taken place.

III.

CONCLUSION

The trial court departed from the essential requirements of the law by determining that GEICO lacked standing to object to MSP’s non-party

Petition granted; order quashed.⁴

3 On certiorari, an appellate court can only deny the petition or quash the challenged order. Nucci v. Nucci, 987 So. 2d 135,139 (Fla. 2d DCA 2008). Unlike an appeal, where we routinely provide remand instructions, we have no authority in this case to direct that the trial court take any particular action on GEICO’s August 31, 2020 motion for a protective order. Our quashal of the principal portions of the trial court’s September 15, 2020 order simply leaves GEICO’s motion pending. Id. Thus, we decline the parties’ invitation to address the merits of GEICO’s privilege claims in the first instance, leaving it to the trial court to consider the issues when it again adjudicates GEICO’s motion.

4 Based on our granting of the petition, we also necessarily quash the trial court’s December 11, 2020 order on GEICO’s October 15, 2020 motion for reconsideration.