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Florida Supreme Court rules that pre-litigation discovery by a PIP insurer under Fla. Stat. Section 627.736 is limited to production of documents specified in statute

On February 16, 2017, in State Farm v. Shands Jacksonville Medical Center, No. SC15-1257, the Florida Supreme Court resolved a certified conflict between the First and Fourth District Courts of Appeal concerning the extent of permissible discovery under Section 627.736(6)(c), a subsection of the statute that governs personal injury protection (“PIP”) insurance. Under subsection (6)(b), upon an insurer’s request, a health care provider for a PIP claimant must furnish a written report of the history, condition, treatment, dates and costs of such treatment and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services renders were reasonable and necessary and identifying which portion of the expenses for such treatment or services were incurred as a result of the bodily injury for which the PIP claim has been made. In addition, the health care provider must allow the inspection and copying of records “regarding such history, condition, treatment, dates and costs of treatment if this does not limit the introduction of evidence at trial,” and subsection (6)(c) provides that in the event of a dispute regarding an insurer’s right to “discovery of facts under this section,” the insurer may seek a court order permitting the discovery.

The First and Fourth DCAs differed as to the scope of facts subject to discovery under (6)(c), the First DCA holding that discovery is limited to the production of the documents expressly described in subsection (6)(c) and the Fourth Circuit employing a much broader analysis allowing for the full panoply of discovery methods provided by the Florida Rules of Civil Procedure. The Florida Supreme Court resolved this conflict in favor of the First DCA’s narrower interpretation, finding as matter of statutory construction that the “discovery of facts” referred to in the statute was intended by the Florida legislature to be a limited pre-litigation procedure for a PIP insurer to obtain specified information about the treatment provided to its insured and the charges for that treatment, through the production of documents, and concluding that the trial court erred in ordering the hospital to make a designated corporate representative available for deposition.