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Case Number: 3D17-1598
Court: Florida Court of Appeal, Third District on appeal from the Circuit Court for Miami-Dade County
Plaintiff's Attorney: Matias R. Dorta, Conzalo R. Dorta and Raul De La Heria
Defendant's Attorney: Benjamin E. Esco, Pedro J. Collazo and Scot C. Cole
Description: Amerisure Insurance Company seeks certiorari review of the trial court’s
order denying its motion to dismiss or abate the spoliation of evidence claim
asserted by the plaintiff, Lazaro Rodriguez. Because Amerisure has failed to meet
the threshold requirement of showing that the trial court’s order creates irreparable
harm, we dismiss the petition for lack of jurisdiction.
While working for BV Oil, Inc. on the premises of Cosme Investments,
LLP, the plaintiff was involved in an accident and suffered personal injuries. He
filed a claim for workers’ compensation benefits and is receiving benefits paid by
BV Oil’s workers’ compensation carrier, Amerisure Insurance Company.
The plaintiff also sued Cosme Investments, asserting claims of negligence
and strict liability for the injuries he suffered as a business invitee on Cosme’s
premises. He then amended his complaint to add BV Oil and Amerisure as
defendants. The plaintiff alleged that BV Oil and Amerisure had possessed, and
negligently lost, a video which showed how the accident occurred. The loss of the
video, according to the plaintiff, impaired his ability to prosecute his claim against
Cosme and defend against Cosme’s claim of comparative negligence.
Amerisure filed a motion to dismiss or abate, arguing that the spoliation
claim was unripe for adjudication until the plaintiff’s premises liability claims had
been resolved. Following a hearing, the trial court denied Amerisure’s motion.
This petition for writ of certiorari followed.
Before reaching the merits of the petition, we must first determine whether
we have jurisdiction. As is well established, “[t]o prevail in its petition for a writ
of certiorari, a party must demonstrate that the contested order constitutes (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 post-judgment
appeal.” Damsky v. University of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA
2014). The latter two elements “are sometimes referred to as irreparable harm.” Id.
If a petitioner is unable to demonstrate irreparable harm, “the court must dismiss
the petition for lack of jurisdiction.” Id.
Here, Amerisure alleges that it will be irreparably harmed if it is forced to
respond to discovery propounded by the plaintiff. Amerisure argues that discovery
is premature and that “the information requested is irrelevant to Plaintiff’s
[complaint], or is otherwise protected by the attorney-client, work-product or other
privileges.” Further, Amerisure has “objected to producing a corporate
representative on the seventeen (17) substantive diverse topics set forth in
Plaintiff’s Notice of Deposition as the notice would potentially require the
depositions of multiple representatives, and were objectionable on their face.”
Although discovery has been propounded, there is no order compelling Amerisure
to respond to the discovery, nor has there been any ruling on the objections to the
While it is true that “[a]n order erroneously compelling discovery of
privileged information is reviewable by certiorari because an order requiring
disclosure of privileged information may cause irreparable injury,” Heartland
Express, Inc. of Iowa v. Torres, 90 So. 3d 365, 367 (Fla. 1st DCA 2012), no such
order exists in this case. Amerisure is only able to show a possibility that the trial
court may enter such an order. This does not rise to the level of irreparable harm.
As we noted in State Farm Florida Insurance Company v. Seville Place
Condominium Association, 74 So. 3d 105, 108, (Fla. 3d DCA 2011), “[t]o the
extent that we previously have granted such a petition when irreparable harm
seems possible rather than imminent, we recede from such decisions.” (Emphasis
Amerisure also argues it is being forced to defend the spoliation claim in the
same trial where the plaintiff prosecutes his negligence and liability claims against
Cosme. As with the discovery issue, there is no trial order yet in place. The
possibility that litigation may result in a unitary trial which, in turn, may well
constitute irreparable harm is insufficient to confer jurisdiction for certiorari