final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 19-242 Barbara Areces,
D. Cruz, P.A., and Shelley Ray Senecal, for petitioner.
Gonzalez Hevia Baldwin, LLP, and Matthew L. Baldwin; Colson
Hicks Eidson, P.A., and William A. Bonner, for respondent.
FERNANDEZ, SCALES and MILLER, JJ.
Windhaven Insurance Company ("Windhaven"), the
defendant automobile insurer in this first-party case, seeks
certiorari review of two discovery orders entered by the
trial court. We deny the petition because the trial court did
not depart from the essential requirements of law when, under
the rather unique circumstances of this case, it compelled
the deposition of Windhaven's representative.
Relevant Facts and Procedural Background
2017, respondent Pedro Martin Mesquita ("Mesquita")
was involved in an automobile accident. After Windhaven
sought to rescind the policy due to an alleged
misrepresentation in Mesquita's insurance application,
Mesquita filed a single-count complaint against Windhaven for
breach of contract. Mesquita's original complaint alleged
unspecified damages resulting from Windhaven's
"fail[ure] to provide either coverage or payment to
[Mesquita] for his losses stemming from the Loss."
Windhaven, under the impression that Mesquita was seeking
insurance proceeds only for damage sustained by
Mesquita's own automobile, answered the complaint and
asserted as an affirmative defense that the policy contained
no collision or comprehensive coverage for Mesquita's
Windhaven filed its answer, however, Mesquita filed an
amended complaint, again for unspecified damages.
Mesquita's amended complaint alleged that he
"suffered personal injuries and other covered losses as
a result of a traffic accident." It appears from the
record that, at the time Mesquita filed his amended
complaint, Mesquita also had received a property damage
subrogation demand from the insurer of the other automobile
involved in the accident. Oddly, though, this pending
subrogation demand was not referenced in Mesquita's
amended complaint. Rather than answering the amended
complaint,  Windhaven filed a Notice of Confession of
Judgment, acknowledging that Mesquita "is entitled to
coverage for Personal Injury Protection Benefits as well as
coverage for any Properly (sic) damage claims against him
pursuant to the policy in question." Windhaven also
conceded Mesquita's entitlement to reasonable
attorney's fees and costs.
time Windhaven filed its confession of judgment, Mesquita
already had filed a motion to compel the deposition of
Windhaven's representative, which was pending. The trial
court conducted a hearing on this motion, ultimately granting
the motion without limiting the scope of the allowable
inquiry to only PIP or property damages. The order, however,
did prohibit Mesquita from seeking any financial information
regarding Windhaven. Shortly thereafter, Windhaven moved for
rehearing. The trial court denied Windhaven's rehearing
motion. Windhaven filed the instant petition challenging the
two orders and we stayed the proceedings below pending our
adjudication of the petition.
argues that, because of Windhaven's confession of
judgment, the trial court departed from the essential
requirements of law by allowing Mesquita to take the
deposition of Windhaven's representative. Windhaven
appears to suggest that, by its filing a confession of
judgment, the case has ended and discovery - especially
discovery as to why Windhaven initially might have denied
coverage - is irrelevant.
problem with Windhaven's argument is two-fold. First, the
case is not over, for the issue of damages remains to be
adjudicated. The limited record before us contains no
evidence as to the amount of damages to which Mesquita may be
entitled under the policy's PIP provision. Similarly, the
limited record before this Court does not quantify either the
damages that Windhaven may suffer as a result of the
third-party subrogation claim asserted against Mesquita (for
which the confession of judgment admits coverage), or the
damages, if any, sustained by ...