15 Fla. L. Weekly Supp. 372b
Insurance — Personal injury protection — Discovery — Depositions — Non-party deponent — Insurer seeking order compelling discovery from non-party independent contractor who performed orthopedic consultation at issue must seek order from circuit court, not county court
BIGLEY & ASSOCIATES, P.A., d/b/a PREMIER ORTHOPEDICS OF ORLANDO as assignee of JUSTIN PIERRE, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 07-SC-2332 #71. February 28, 2008. Antoinette D. Plogstedt, Judge. Counsel: Michelle L. Kelson, Coury Law Firm P.A. George Milev.
ORDER DENYING DEFENDANT’S MOTION TO COMPEL DISCOVERY
THIS CAUSE, having come before the Court on January 29, 2008, on Defendant’s Motion to Compel Discovery, Motion for Sanctions, Motion to Strike Plaintiff’s Pleadings and Rule to Show Cause, and the Court having reviewed the Parties’ Motions and having heard argument of both counsel and having considered relevant Florida law, and being otherwise fully advised in the premises, the Court finds as follows:
1. The above styled cause of action arises out of a claim for personal injury protection benefits filed by the Plaintiff for medical services rendered to the Defendant’s insured, Justin Pierre.
2. Based upon the record before the Court and based upon representations by counsel for Plaintiff, Dr. Gallo is a non-party, independent contractor, who performed the orthopedic consultation at issue.
3. Defendant took Dr. Gallo’s deposition on August 9, 2007.
4. Thereafter, Defendant filed a Motion to Compel Discovery and set it for hearing.
5. Plaintiff filed an Objection to Defendant’s Notice for Hearing Regarding Motions to Compel Non-Party Discovery — County Court Lacks Jurisdiction.
6. Florida Rule of Civil Procedure, Rule 1.380(a)(1) sets forth the procedure a party must follow when seeking the court’s intervention to compel discovery of a non-party deponent, as follows:
(a) Motion for Order Compelling Discovery.
Upon reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a deponent who is not a party shall be made to the circuit court . . . .” Rule 1.380(a)(1).
7. The Defendant is seeking an Order compelling discovery from Dr. Gallo, who this Court finds is a non-party, independent contractor, therefore pursuant to the mandatory provision in Rule 1.380(a)(1), the Defendant shall seek an order from the appropriate court, which is the Circuit Court.
It is hereby ORDERED AND ADJUDGED:
1. Plaintiff’s Objection to Defendant’s Notice of Hearing regarding Motions to Compel Non-Party Discovery — County Court Lacks Jurisdiction is hereby SUSTAINED.
2. That this Court lacks Jurisdiction to compel discovery from a non-party deponent pursuant to Rule 1.380(a)(1), and therefore, Defendant’s Motion to Compel Discovery is hereby DENIED.