IN THE FIRST DISTRICT COURT OF APPEAL TALLAHASSEE, FLORIDA

Case No. ___________

PEOPLE’S TRUST INSURANCE COMPANY,

Petitioner,

vs.

THEODORE R. FOSTER,

Respondent.

----------------------------------------------------------------

PETITION FOR WRIT OF CERTIORARI ---------------------------------------------------------------- DIRECTED TO THE FOURTH JUDICIAL CIRCUIT,

IN AND FOR DUVAL COUNTY, FLORIDA L.T. CASE NO. 2019-CA-008132

Patrick M. Chidnese Bickford & Chidnese, LLP 307 S. Willow Ave. Suite 100 Tampa, FL 33606 patrick@bcflalaw.com

Brett R. Frankel Alexander S. Beck People’s Trust Insurance Company 18 People’s Trust Way Deerfield Beach, FL 33441

Daniel J. Maher Cole, Scott & Kissane P.A. 9150 South Dadeland Blvd. Suite 1400 Miami, FL 33156

Filing # 123448558 E-Filed 03/19/2021 06:39:44 PM

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TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................ 1

BASIS FOR INVOKING JURISDICTION ........................................... 1

FACTS UPON WHICH PETITIONER RELIES .................................... 6

NATURE OF THE RELIEF SOUGHT .............................................. 11

ARGUMENT IN SUPPORT OF THE PETITION ................................ 11

As A Matter Of Law, PTIC’s Underwriting Manuals Are Categorically Protected From Disclosure During This Coverage Litigation ................................................................................... 11

PTIC’s Underwriting Manuals Are Subject To Trade Secret Privilege ..................................................................................... 16

CONCLUSION .............................................................................. 20

CERTIFICATE OF SERVICE ......................................................... 21

CERTIFICATE OF TYPEFACE COMPLIANCE ................................ 21

ii

TABLE OF AUTHORITIES Cases Page(s) Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995) .......................................................... 12 Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So. 2d 1347 (Fla. 5th DCA 1998) ...................................... 5, 8 Am. Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206 (Fla. 4th DCA 2000) ........................................ 19 Arthur Finnieston, Inc. v. Pratt, 673 So. 2d 560 (Fla. 3d DCA 1996) ............................................ 19 Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters.,

LLC, 99 So. 3d 450 (Fla. 2012) ................................................... 2 Bright House Networks, LLC v. Cassidy, 129 So. 3d 501 (Fla. 2d DCA 2014) ............................................ 17 Craig-Myers v. Otis Elevator Co., 45 Fla. L. Weekly D2190 (Fla. 1st DCA Dec. 14, 2020) ................ 2 Florida Residential Prop. & Cas. Joint Underwriters Ass’n v. Sanchez,

693 So. 2d 68 (Fla. 3d DCA 1997).......................................... 5, 14 Gen. Caulking Coating Co. v. J.D. Waterproofing, Inc., 958 So. 2d 507, 508 (Fla. 3d DCA 2007) .............................. 18-19 Gen. Star Indem. Co. v. Atl. Hosp. of Florida, LLC, 93 So. 3d 501 (Fla. 3d DCA 2012)...................................... 2, 7, 12 Gov’t Employees Ins. Co. v. Rodriguez, 960 So. 2d 794 (Fla. 3d DCA 2007) .............................. 4, 8, 12, 14 Grooms v. Distinctive Cabinet Designs, Inc., 846 So. 2d 652 (Fla. 2d DCA 2003) ............................................. 6

iii

Gulfcoast Spine Inst., LLC v. Walker, 46 Fla. L. Weekly D308 (Fla. 2d DCA Feb. 5, 2021) .............. 18, 19 Hartford Insurance Company v. Mainstream Construction Group, 864 So. 2d 1270 (Fla. 5th DCA 2004) .............................. 4, 12, 13 Homeowners Choice Prop. & Cas. Ins. Co. v. Mahady, 284 So. 3d 582 (Fla. 4th DCA 2019) ...................................... 3, 15 KPMG LLP v. State, Dept. of Ins., 833 So. 2d 285 (Fla. 1st DCA 2002) ..................................... 18, 20 Laser Spine Inst., LLC v. Greer, 144 So. 3d 633 (Fla. 1st DCA 2014) ........................................... 18 Liberty Mut. Ins. Co. v. Farm, Inc., 754 So. 2d 865 (Fla. 3d DCA 2000) ............................................. 5 Old Republic Nat. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818 (Fla. 5th DCA 2003) .................................... 4-5, 8 Phoenix Ins. Co. v. Trans World Forwarding, Inc., 19 So. 3d 430 (Fla. 3d DCA 2009)...................................... 7-8, 12 Sheets v. Standard Fire Ins. Co., 15-80940, 2015 WL 13273087 (S.D. Fla. Nov. 4, 2015) .............. 14 State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012 (Fla. 3d DCA 1995) .................................. 5, 8, 14 State Farm Florida Ins. Co. v. Gallmon, 835 So. 2d 389 (Fla. 2d DCA 2003) ...................................... 4-5, 8 State Farm Florida Ins. Co. v. Desai, 106 So. 3d 5 (Fla. 3d DCA 2013) ................................................ 3 State Farm Florida Ins. Co. v. Hill, 45 Fla. L. Weekly D2634 (Fla. 3d DCA Nov. 25, 2020) ............ 3, 13

iv

State Farm Florida Ins. Co. v. Seville Place Condo. Ass’n, Inc., 74 So. 3d 105 (Fla. 3d DCA 2011)............................................... 3 State Farm Mut. Auto. Ins. Co. v. Cook, 744 So. 2d 567 (Fla. 2d DCA 1999) .................................... 5, 8, 14 State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So. 2d 633 (Fla. 2d DCA 2008) ........................................ 4, 14 State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809 (Fla. 4th DCA 2010) ................................. 3-4, 7, 12 Uniroyal Goodrich Tire Co. v. Eddings, 673 So. 2d 131 (Fla. 4th DCA 1996) .................................... 19-20 Wal-Mart Stores E., L.P. v. Endicott, 81 So. 3d 486 (Fla. 1st DCA 2011) .................................... 6, 17-18 Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc., 26 So. 3d 620 (Fla. 4th DCA 2009) ........................ 6, 16-17, 18-19 Statutes Fla. Stat. §688.002(4) ................................................................... 16 Fla. Stat. §90.506 ........................................................................ 19

1

INTRODUCTION

Petitioner People’s Trust Insurance Company (“PTIC”), pursuant

to Rules 9.030(b)(2)(A) and 9.100, Florida Rules of Appellate

Procedure, petitions the Court to quash an order compelling PTIC to

produce internal underwriting manuals to its insured, Respondent

Theodore R. Foster (“Foster”).

Under a legion of authority, certiorari should issue to prevent

this improper and premature bad faith discovery. In addition,

certiorari is appropriate because PTIC’s underwriting manuals

contain confidential trade secret information. The Court should

accept jurisdiction, grant PTIC’s Petition, and quash the order under

review.

BASIS FOR INVOKING JURISDICTION

By its “Order on Plaintiff’s Motion to Compel Better Answers to

Interrogatories, Better Responses to Request to Produce and Motion

to Overrule Defendant’s Objections to Plaintiff’s Discovery” dated and

rendered February 17, 2021 (the “Order Compelling Production”), the

trial court compelled PTIC to produce its “underwriting manual(s) in

2

effect at the time of the issuance or renewal of all policies issued to

[Foster].” (Appx. pp. 6, ¶ 14, 32 ¶ 10).1

A writ of certiorari will issue where the petitioner establishes

“(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.” Craig-Myers v. Otis

Elevator Co., 45 Fla. L. Weekly D2190, at *1 (Fla. 1st DCA Dec. 14,

2020) (quoting Bd. of Trs. of Internal Improvement Tr. Fund v. Am.

Educ. Enters., LLC, 99 So. 3d 450, 454 (Fla. 2012)). The final two

elements form the jurisdictional threshold that a petitioner establish

irreparable harm, i.e., harm that cannot be remedied on final appeal.

See id.

For the past twenty-five years, Florida appellate courts have

consistently issued certiorari to quash “discovery relating to an

insurer’s business practices and policies” during insurance coverage

litigation. Gen. Star Indem. Co. v. Atl. Hosp. of Florida, LLC, 93 So.

3d 501, 502–03 (Fla. 3d DCA 2012) (granting petition for writ of

certiorari and quashing order compelling the production of manuals

1 Citations to the Appendix are in the form (Appx. p. __).

3

and guidelines relating to underwriting, among other items); see, e.g.,

State Farm Florida Ins. Co. v. Hill, 45 Fla. L. Weekly D2634 (Fla. 3d

DCA Nov. 25, 2020) (“In first-party disputes concerning coverage

under a homeowners’ insurance policy, this Court has consistently

granted certiorari and quashed discovery orders that permitted

insureds to obtain their insurers’ claims handling policies, practices,

procedures, manuals or guidelines.”); Homeowners Choice Prop. &

Cas. Ins. Co. v. Mahady, 284 So. 3d 582, 583 (Fla. 4th DCA 2019)

(“We therefore grant the petition and quash the trial court’s order

allowing discovery of the claim files and underwriting file at this

time.”); State Farm Florida Ins. Co. v. Desai, 106 So. 3d 5, (Mem)–6

(Fla. 3d DCA 2013) (granting petition for writ of certiorari and

quashing order directing the production of claim manuals and

guidelines, along with other discovery); State Farm Florida Ins. Co. v.

Seville Place Condo. Ass’n, Inc., 74 So. 3d 105, 109 (Fla. 3d DCA

2011) (on rehearing en banc) (recognizing that premature bad faith

discovery may present irreparable harm for purposes of certiorari

review); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809,

809 (Fla. 4th DCA 2010) (granting petition for writ of certiorari and

quashing discovery order compelling insurer to respond to discovery

4

involving claims handling procedures and business practices); State

Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So. 2d 633, 638 (Fla. 2d DCA

2008) (granting petition for writ of certiorari and quashing order

requiring the production of underwriting file contents before liability

and the extent of damages were determined); Gov’t Employees Ins.

Co. v. Rodriguez, 960 So. 2d 794, 795 (Fla. 3d DCA 2007) (granting

petition for writ of certiorari and quashing order requiring the

production of “general claims handling practices and procedures,”

including manuals); Hartford Insurance Company v. Mainstream

Construction Group, 864 So. 2d 1270 (Fla. 5th DCA 2004) (“Although

certiorari is ordinarily not available to review an order denying a

motion to dismiss, it is available when, as here, irreparable injury

may occur by premature discovery of an insurer’s internal business

records and claim files.”); Old Republic Nat. Title Ins. Co. v.

HomeAmerican Credit, Inc., 844 So. 2d 818, 819 (Fla. 5th DCA 2003)

(granting petition for writ of certiorari and quashing order compelling

production of documents relating to “business policies and practices

regarding the handling of claims”); State Farm Florida Ins. Co. v.

Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA 2003) (granting petition

for writ of certiorari and quashing order requiring production of

5

company policies and manuals, among other items); State Farm Mut.

Auto. Ins. Co. v. Cook, 744 So. 2d 567, 568 (Fla. 2d DCA 1999)

(granting petition for writ of certiorari and quashing order denying

protective order covering insurer’s internal operating manuals,

among other materials); Liberty Mut. Ins. Co. v. Farm, Inc., 754 So. 2d

865, 866–67 (Fla. 3d DCA 2000) (granting petition for writ of

certiorari and quashing order requiring insurer to produce discovery

involving “the insurer’s business practices); Am. Bankers Ins. Co. of

Fla. v. Wheeler, 711 So. 2d 1347, 1348 (Fla. 5th DCA 1998) (granting

petition for writ of certiorari and quashing trial court order requiring

the production of claims handling manuals and materials); Florida

Residential Prop. & Cas. Joint Underwriters Ass’n v. Sanchez, 693 So.

2d 68 (Fla. 3d DCA 1997) (granting petition for writ of certiorari and

quashing order “directing disclosure of its underwriting guidelines

and five years worth of similar claim documents”); State Farm Fire &

Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995)

(granting petition for writ of certiorari and quashing order requiring

production of manuals, guidelines, and documents concerning

claims handling procedures as irrelevant).

6

In addition, “[o]rders improperly requiring the disclosure of

trade secrets or other proprietary information often create

irreparable harm and are thus appropriate for certiorari review.”

Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc., 26 So. 3d 620,

622 (Fla. 4th DCA 2009); see Wal-Mart Stores E., L.P. v. Endicott, 81

So. 3d 486, 491 (Fla. 1st DCA 2011) (“This type of harm is known as

‘cat out of the bag’ harm because once the documents are

disseminated, a privacy or trade secret interest has been invaded

which cannot be remedied on direct appeal.”); Grooms v. Distinctive

Cabinet Designs, Inc., 846 So. 2d 652, 654 (Fla. 2d DCA 2003)

(“Orders improperly requiring the disclosure of trade secrets or

other proprietary information often create irreparable harm and are

thus appropriate for certiorari review.”).

FACTS UPON WHICH PETITIONER RELIES

On November 13, 2019, Foster sued his insurer, PTIC, for

“material breach” of his property insurance policy. (Appx. pp. 11-

12).2 Along with the initial Complaint, Foster served PTIC with a

series of discovery requests. (Appx. pp. 23-33). Foster’s “Request to

2 Citations to the Appendix are in the form (Appx. p. __).

7

Produce” under Rule 1.350, Florida Rules of Civil Procedure, sought

as its final request the following category of documents:

10. Defendant’s underwriting manual(s) in effect at the time of the issuance or renewal of all policies issued to Plaintiff.

(Appx. p. 32). On December 26, 2019, PTIC answered the Complaint

and asserted defenses. (Appx. p. 34).

On September 30, 2020, PTIC responded to Foster’s “Request

to Produce.” (Appx. p. 43). PTIC provided specific legal authority in

support of its objection to the production of “manuals, guidelines,

and other similar materials”:

PTI objects to producing, as insurer work product and impermissible bad faith discovery, privileged and otherwise irrelevant business practices and procedures manuals, guidelines, and other similar materials. See Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995) (recognizing that discovery requests for internal memoranda on claims handling procedures are irrelevant while coverage issue remains undetermined); Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 93 So. 3d 501, 503 (Fla. 3d DCA 2012) (holding that discovery order requiring insurer to produce underwriting guideline materials was a departure from the essential requirements of law causing irreparable harm for which an appeal could not remedy); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010)(holding that “. . . until the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to . . . business policies or practices regarding handling of claims.”); Phoenix Ins. Co. v. Trans World Forwarding,

8

Inc., 19 So. 3d 430 (Fla. 3d DCA 2009)(holding that discovery concerning an insurer’s business practices is premature “until there has been a determination of liability and extent of damages owed . . .”)(citing Gov’t Employees Ins. Co. v. Rodriguez, 960 So. 2d 794 (Fla. 3d DCA 2007)); Allstate Ins. Co. v. Swain, 921 So. 2d 717, 718-19 (Fla. 3d DCA 2006)(holding that documents concerning insurance policy drafting and marketing, and training of employees and agents, were irrelevant and “completely unnecessary to the determination of the coverage issues presented”); Gov’t Employees Ins. Co. v. Rodriguez, 960 So. 2d 794, 795-96 (Fla. 3d DCA 2007)(holding that discovery order compelling production of internal claims handling guidelines departed from the essential requirements of law during first-party coverage dispute); Old Republic Nat’l Title Ins. Co. v. Homeamerican Credit Inc., 844 So. 2d 818, 819-20 (Fla. 5th DCA 2003)(holding that order requiring disclosure of documents concerning insurer’s business policies and practices was premature before determination on coverage issue); State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA 2003)(quashing order compelling insurer to produce company policies and manuals as being irrelevant and otherwise protected as insurer work product); State Farm Mut. Auto. Ins. Co. v. Cook, 744 So. 2d 567, 568 (Fla. 2d DCA 1999)(holding that an insurer’s “internal manuals are also protected from discovery until and unless the bad faith claims are prosecuted”)(citing State Farm Fire and Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995)); Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So. 2d 1347, 1348 (Fla. 5th DCA 1998)(holding that discovery order compelling production of claim file materials and guidelines, and desk adjuster’s personnel file, departed from the essential requirements of law in first-party coverage dispute).

(Appx. p. 45) (emphasis in original).

9

Likewise, PTIC cited specific legal authority in support of PTIC’s

objection to producing “trade secret and other proprietary

information”:

PTI objects to producing materials containing privileged trade secret and other proprietary information. See Fla. Stat. §90.506; Fla. Stat. §688.002(4); Gen. Caulking Coating Co. v. J.D. Waterproofing, Inc., 958 So. 2d 507, 508 (Fla. 3d DCA 2007).

(Id.) (emphasis in original). PTIC also provided a separate objection

to Foster’s specific request number 10: “Objection: irrelevant;

overbroad; insurer work product; claim file privilege.” (Appx. p. 48).

On October 8, 2020, Foster filed “Plaintiffs’ [sic] Motion to

Compel Better Answers to Interrogatories, Better Responses to

Request to Produce and Motion to Overrule Defendant’s Objections

to Plaintiffs’ Discovery” (the “Motion to Compel”). (Appx. p. 49). The

two-paragraph Motion to Compel requested that the trial court order

PTIC “to provide better responses to Plaintiffs’ Request to Produce

numbered one through ten (1-10) and overrule Defendant’s

Objections.” (Id.). The Motion to Compel neither explains the

deficiencies in PTIC’s response nor does it provide any legal basis to

overrule PTIC’s objections. (See id.).

10

On February 8, 2021, PTIC filed a response in opposition to the

Motion to Compel. (Appx. p. 71). PTIC explained that its counsel

attempted to confer with Foster’s counsel about the Motion to

Compel. (Appx. p. 72, ¶¶ 4-6). Foster’s counsel failed to explain the

“vaguely outlined” arguments in the Motion to Compel, in violation of

the trial court’s administrative procedures and Rule 1.380, Florida

Rules of Civil Procedure. (Appx. p. 73, ¶¶ 9-11.). Instead, Foster

“proceeded to set a hearing in lieu of providing more specific

information.” (Id., ¶ 12). By notice dated October 28, 2020, Foster’s

counsel set the Motion to Compel for a non-evidentiary hearing on

February 10, 2021.3 (See Appx. p. 91).

3 Although the hearing was not transcribed, a transcript is not necessary to review the trial court’s decision to overrule PTIC’s objections following the non-evidentiary hearing. See Rollet v. de Bizemont, 159 So. 3d 351, 357–58 (Fla. 3d DCA 2015) (“Where the hearing at issue is non-evidentiary and consists only of legal argument, the failure to provide a transcript is not necessarily fatal to appellate review.”); Doan v. Amelia Retreat Condo. Ass’n, Inc., 604 So. 2d 1292, 1293–94 (Fla. 1st DCA 1992); see, e.g., Zuckerman v. A & B Window & Glass, Inc., 930 So. 2d 632 (Fla. 3d DCA 2005) (granting certiorari in the absence of a transcript where the issue on review was a “legal issue”); Reinoso v. Fuentes, 932 So. 2d 536, 536–37 (Fla. 3d DCA 2006) (permitting review of legal issue in the absence of a transcript where the legal deficiency was apparent from the face of the pleadings). As explained below, Foster’s request for PTIC’s underwriting manuals is improper on its face and in its entirety.

11

On February 17, 2021, the trial court entered its Order

Compelling Production. (Appx. pp. 4-6). The trial court overruled

PTIC’s objections and ordered production of PTIC’s underwriting

manual:

14. As to Plaintiff’s Request to Produce number ten (10), Defendant’s objections are overruled.

(Appx. p. 6).

NATURE OF THE RELIEF SOUGHT

PTIC respectfully requests the Court issue a writ of certiorari

quashing the trial court’s Order Compelling Production because

PTIC’s underwriting manuals are categorically protected from

disclosure in this litigation. In addition, the Court should quash the

Order Compelling Production because PTIC’s underwriting manuals

constitute proprietary trade secret information.

ARGUMENT IN SUPPORT OF THE PETITION

As a Matter of Law, PTIC’s Underwriting Manuals Are Categorically Protected from Disclosure During This Coverage Litigation

An insurer’s underwriting manuals, company policies, and

guidelines are not discoverable “unless there has been a

determination of liability and extent of damages owed the insured

under the first-party insurance policy.” Gen. Star Indem. Co, 93 So.

12

3d at 502 (quoting Phoenix Ins. Co. v. Trans World Forwarding, Inc.,

19 So. 3d 430, 430 (Fla. 3d DCA 2009) (quoting Rodriguez, 960 So.

2d at 795)); see Tranchese, 49 So. 3d at 810 (“[U]ntil the obligation

to provide coverage and damages has been determined, a party is not

entitled to discovery related to the claims filed or to the insurer’s

business policies or practices regarding handling of claims.”); Phoenix

Ins. Co., 19 So. 3d at 430–31 (noting that until liability and the extent

of damages is resolved, discovery “directed to an insurer’s business

practices” is premature); Mainstream Const. Group, Inc., 864 So. 2d

at 1272–73 (noting that “an insured is not entitled to discover an

insurer’s claim file or documents relating to the insurer’s business

policies or claims practices until coverage has been determined . . .

.”); see, generally, Allstate Ins. Co. v. Langston, 655 So. 2d 91, 93–95

(Fla. 1995) (“The materials Langston sought in paragraphs 3, 4, and

5 of her discovery request—internal procedural memos, claims

manuals, and standards for proper investigation of claims—do, as

the district court noted, appear irrelevant.”).

Stated differently, an insured is not entitled to discover an

insurer’s “business policies or claims practices” until a claim for bad

faith accrues. See Mainstream Const. Group, Inc., 864 So. 2d at 1272-

13

73; Farm, Inc., 754 So. 2d at 866–67 (holding that discovery directed

to the insurer’s business practices is premature and not discoverable

until a bad faith claim has accrued). “If there is no insurance

coverage, nor any loss or injury for which the insurer is contractually

obligated to indemnify, the insurer cannot have acted in bad faith in

refusing to settle the claim.” Mainstream Const. Group, Inc., 864 So.

2d at 1272. Such premature discovery, if permitted, causes

irreparable harm to the insurer. Id. at 1271; see supra, pp. 3-6.

On its face, Foster’s request for PTIC’s “underwriting manual(s)

in effect at the time of the issuance or renewal of all policies issued

to [Foster]” targets PTIC’s internal business practices. (Appx. p. 32).

These records are not subject to disclosure until a claim for bad faith

accrues, if ever.4 See Hill, 45 Fla. L. Weekly D2634, at *1 (collecting

cases regularly quashing discovery orders compelling the production

of materials including manuals and guidelines in first-party

insurance coverage disputes); O’Hearn, 975 So. 2d at 637 (holding

4 Such discovery remains improper and subject to certiorari review even where the insured does not expressly plead a claim for bad faith. Hill, 45 Fla. L. Weekly D2634, at *2 (Fla. 3d DCA Nov. 25, 2020) (“While the Hills note they have not pled a bad faith claim in this action, their requested discovery with respect to section 627.70131(5)(a) is nevertheless impermissible.”).

14

that materials contained in underwriting or claim file are not

discoverable until the insurer’s liability and damages are finally

determined); Rodriguez, 960 So. 2d at 796 (granting certiorari and

quashing order compelling the production of general practices and

procedures because internal procedures are immaterial in the

absence of a bad faith claim); Cook, 744 So. 2d at 568 (granting

certiorari and quashing order denying protective order because the

insurer’s “internal manuals are also protected from discovery until

and unless the bad faith claims are prosecuted”); Florida Residential

Prop. & Cas. Joint Underwriters Ass’n, 693 So. 2d 68 (quashing order

compelling production of underwriting guidelines during the

coverage dispute); Valido, 662 So. 2d at 1013 (quashing “in its

entirety” an order compelling production of manuals, guidelines and

documents in first-party insurance coverage dispute); accord Sheets

v. Standard Fire Ins. Co., 15-80940, 2015 WL 13273087, at *2 (S.D.

Fla. Nov. 4, 2015) (applying Florida law and concluding that discovery

requests directed to underwriting policies and procedures “are

unrelated to the issues of coverage or damages, and relate only to the

issue of bad faith”).

15

For example, in Homeowners Choice Property & Casualty

Insurance Company v. Mahady, Florida’s Fourth District Court of

Appeal quashed discovery requests seeking information contained in

the insurer’s claim and underwriting files. Like Foster, the insureds

sued their property insurer for breach of contract. 284 So. 3d at 582.

The insureds propounded discovery requests implicating the

underwriting and claim files. Id. at 583. The trial court “summarily

overruled” the insurer’s objections regarding the underwriting file.

Id.

The Fourth District noted that although the trial court failed to

make sufficient findings to overrule the insurer’s work product

objections, remand was unnecessary because “these discovery

requests are facially improper, in their entirety.” Id. at 584

(emphasis added). The court quashed the trial court’s order

overruling the insurer’s objections because the requests regarding

the claim and underwriting files “are improper on their face.” Id.

PTIC objected to Foster’s discovery seeking “impermissible bad

faith discovery,” including “manuals, guidelines, and other similar

materials.” (Appx. p. 45) (emphasis in original). PTIC provided

specific legal citations in support of its objection, including many of

16

the authorities cited in this Petition. (Id.). PTIC specifically objected

to Foster’s request as “irrelevant” and “overbroad,” both of which are

borne out by the unbroken wave of authority holding that PTIC’s

internal business practices are not subject to disclosure. (Appx. p.

48). Foster’s request and the trial court’s Order Compelling

Production are both improper on their face. See Mahady, 284 So. 3d

at 583. The Court should grant this Petition and quash that portion

of the Order Compelling Production overruling PTIC’s objections and

requiring PTIC to produce its underwriting manuals.

PTIC’s Underwriting Manuals Are Subject to Trade Secret Privilege

In addition, certiorari is appropriate to review the Order

Compelling Production because PTIC’s underwriting manuals

constitute privileged trade secret materials. See Fla. Stat.

§688.002(4) (defining trade secrets to include methods, techniques,

and processes).

Where a party objects to the production of trade secret

information, a trial court must first determine if a trade secret exists.

See Lewis Tree Serv., Inc. v. Asplundh Tree Expert, LLC, 45 Fla. L.

Weekly D2228, at *3 (Fla. 2d DCA Sept. 25, 2020) (“To ensure that

this privilege is properly protected, courts have set forth a three-step

17

analysis for trial courts to undertake when faced with a claim that a

discovery request seeks the production of protected trade secret

information. In the first step, the trial court must determine whether

the information requested constitutes or contains trade secret

information.”). If the existence of a trade secret is disputed, the trial

court must conduct in camera review or hold an evidentiary hearing.

See id.; Bright House Networks, LLC v. Cassidy, 129 So. 3d 501, 505–

06 (Fla. 2d DCA 2014) (“When a party objects to the disclosure of a

trade secret, first a court must determine whether the requested

information is, in fact, a trade secret. . . . Usually this determination

requires the trial court to perform an in camera review of the

information.”).

This Court recognizes that internal policy manuals rise to the

level of privileged trade secrets. In Wal-Mart Stores E., L.P. v. Endicott,

81 So. 3d 486, the Court held that the disclosure of “portions of Wal–

Mart’s Pharmacy Operations Manual” would cause irreparable harm

notwithstanding that “Wal–Mart has not expressly pointed to a

document or a set of documents which it believes would cause

irreparable harm . . . .” Id. at 488, 490. Given the proprietary nature

of Wal-Mart’s internal operations manual, like PTIC’s underwriting

18

manuals here, the Court granted certiorari relief and quashed the

order compelling disclosure. Id. at 491.

Once a trial court determines that requested material

constitutes a trade secret, this Court requires the trial court to make

“particularized findings” establishing the requesting party’s

“reasonable necessity for production despite the existence of trade

secrets.” KPMG LLP v. State, Dept. of Ins., 833 So. 2d 285, 286 (Fla.

1st DCA 2002); see Laser Spine Inst., LLC v. Greer, 144 So. 3d 633,

633–34 (Fla. 1st DCA 2014) (granting petition for writ of certiorari

and quashing order compelling disclosure of trade secret documents

without including “particularized findings” on the necessity of the

production); see also Gulfcoast Spine Inst., LLC v. Walker, 46 Fla. L.

Weekly D308 (Fla. 2d DCA Feb. 5, 2021) (“Any ordered disclosure

must be supported by findings.”); Lewis Tree Serv., Inc., 45 Fla. L.

Weekly D2228, at *3; Gen. Caulking Coating Co., Inc. v. J.D.

Waterproofing, Inc., 958 So. 2d 507, 509 (Fla. 3d DCA 2007)

(“Because the order under review makes no specific findings as to

why it deemed the requested information not to be protected by the

trade secret privilege we find that ‘it departs from the essential

requirements of the law for which no adequate remedy may be

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afforded to petitioners on final review.’”) (quoting Arthur Finnieston,

Inc. v. Pratt, 673 So. 2d 560, 562 (Fla. 3d DCA 1996)). This follows

from section 90.506, Florida Statutes, which requires a court to take

appropriate protective measures. Lewis Tree Serv., Inc., 45 Fla. L.

Weekly D2228, at *3.

PTIC objected to Foster’s requests and provided legal authority

in support, including section 90.506, Florida Statutes. (Appx. p. 45).

The Order Compelling Production improperly orders PTIC to produce

its internal underwriting manuals, which are subject to trade secret

protection. See Wal-Mart Stores E., L.P., 81 So. 3d at 490. Before

summarily overruling PTIC’s objection, at a minimum, the trial court

should have conducted an in camera review or held an evidentiary

hearing. See Am. Exp. Travel Related Services, Inc. v. Cruz, 761 So.

2d 1206, 1210 (Fla. 4th DCA 2000) (granting petition for writ of

certiorari and directing trial court to conduct an in camera inspection

of American Express’s “Internal Credit Authorizations Manual” to

determine “(1) whether the Manual constitutes a ‘trade secret’; and if

so (2) whether the necessity for the production of the Manual

outweighs the interest in maintaining its confidentiality”); Uniroyal

Goodrich Tire Co. v. Eddings, 673 So. 2d 131, 132 (Fla. 4th DCA 1996)

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(granting petition for writ of certiorari and remanding for an

evidentiary hearing as to whether “quality assurance manual” for a

manufacturing plant was entitled to trade secret protection). If the

trial court then found PTIC’s underwriting manuals to contain trade

secrets, the trial court would be required to make “particularized

findings” overruling PTIC’s privilege. KPMG LLP, 833 So. 2d at 286.

To the extent the Court does not quash the Order Compelling

Production because it constitutes premature bad faith discovery, the

Court should quash the Order Compelling Production because it

improperly compels the production of trade secret materials. At a

minimum, the Court should remand for the trial court to conduct a

sufficient in camera or evidentiary hearing.

CONCLUSION

For the foregoing reasons, PTIC respectfully requests the Court

grant PTIC’s Petition for issuance of a writ of certiorari quashing the

trial court’s Order Compelling Production.

Respectfully submitted,

/s/ Patrick M. Chidnese Patrick M. Chidnese Florida Bar No. 089783 patrick@bcflalaw.com Bickford & Chidnese, LLP

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307 S. Willow Avenue, Suite 100 Tampa, FL 33606 Tel: 813-576-0095

Attorney for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 19, 2021, I electronically

filed the foregoing with the Florida Courts E-Portal system, which will

automatically provide copies to all counsel of record, and via USPS

pursuant to Rule 9.420 (c). I also served a copy of the foregoing via

electronic mail on the following:

Mark A. Nation, Esq. The Nation Law Firm 570 Crown Oak Centre Dr. Longwood, FL 32750 mnation@nationlaw.com bhirt@nationlaw.com ppritchard@nationlaw.com thammack@nationlaw.com

/s/ Patrick M. Chidnese Attorney

CERTIFICATE OF TYPEFACE COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in this

Answer Brief is Bookman Old Style in 14 Point Type and that it

contains 4,108 words.

/s/ Patrick M. Chidnese Attorney