Opinion
2D23-93
07-12-2023
PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. LLOYD'S OF SHELTON AUTO GLASS, LLC, as assignee of Bruce Farlow, Respondent.
Jordan M. Thompson and Megan E. Alexander of Young, Bill, Boles, Palmer, Duke & Thompson, Tampa, for Petitioner. Michael V. Laurato of Austin &Laurato, P.A., Tampa; Anthony T. Prieto of Morgan &Morgan, P.A., Tampa; and David M. Caldevilla of de la Parte, Gilbert, McNamara &Caldevilla, P.A., Tampa for Respondent.
Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Melissa M. Polo, Judge.
Jordan M. Thompson and Megan E. Alexander of Young, Bill, Boles, Palmer, Duke & Thompson, Tampa, for Petitioner.
Michael V. Laurato of Austin &Laurato, P.A., Tampa; Anthony T. Prieto of Morgan &Morgan, P.A., Tampa; and David M. Caldevilla of de la Parte, Gilbert, McNamara &Caldevilla, P.A., Tampa for Respondent.
SILBERMAN, Judge
Lloyd's of Shelton Auto Glass, LLC, as assignee of Bruce Farlow (Lloyd's), filed a statutory bad faith action against Progressive Select Insurance Company (Progressive). Progressive seeks certiorari review of a nonfinal order that directs the release of its Provider Agreement with Safelite Solutions, LLC (the Agreement), to Lloyd's trial counsel. The order directs release of the Agreement subject to a confidentiality agreement entered into between Lloyd's and Progressive. Progressive challenges the trial court's order and contends that production of the Agreement would disclose irrelevant trade secret material. We deny Progressive's petition for writ of certiorari.
In its complaint Lloyd's alleges, among other things, that Farlow was insured under a motor vehicle insurance policy issued by Progressive which provided coverage for windshield replacement services. He sustained damage to his windshield, requiring replacement, and he selected Lloyd's to replace the windshield. Lloyd's did so, and pursuant to an assignment of insurance benefits, it submitted an invoice to Progressive for $1,407.97. Progressive refused to pay the invoiced amount and instead paid $486.82. Progressive then invoked the appraisal process provided for in the insurance policy. The appraisal determined that Progressive was required to pay an additional $395.73 to Lloyd's.
Lloyd's alleges that it filed a civil remedy notice with the Department of Financial Services, asserting that Progressive violated applicable statutes by
failing to act in good faith, failing to properly investigate, review, adjust, and administer payment of [Lloyd's] bills, engaging in unfair claim denial and unfair settlement practices, failing to clearly and completely communicate reasons or basis for the nonpayment of [Lloyd's] full invoiced amount, misrepresenting pertinent facts related to coverages at issue, and by engaging in such conduct with such frequency as to constitute a general business practice.
Lloyd's asserts that Progressive failed to timely cure the claimed violations and that Progressive failed to properly analyze Lloyd's claim in accordance with the insurance policy's provisions.
In the complaint, Lloyd's reiterates the allegations it had set forth in the civil remedy notice and asserts that Progressive engaged in unlawful business practices and bad faith by failing to properly settle Lloyd's claim. Lloyd's states that Progressive intentionally underpaid the insurance benefits available under the policy, unlawfully invoked the appraisal process, and violated the terms of the policy by retaining a biased third-party appraiser. It claims that Progressive entered into a secret pricing agreement with Safelite for deeply discounted rates for windshield replacement services, that those rates are not based on a reasonable and fair market price payable to an independent windshield replacement facility for the same and similar services in the competitive market, and that Progressive improperly delegates its adjusting responsibilities to a sister company of Safelite. In summary, Lloyd's alleges that Progressive, for financial gain, acted in "willful, wanton, and . . . reckless disregard" for the rights of its insured as part of its general business practice, in violation of Florida law.
Progressive filed an answer denying the allegations of misconduct and asserting multiple affirmative defenses, including that it acted in accordance with the applicable statutes and the terms of its insurance policy. During discovery, Lloyd's sought production from Progressive of its Agreement with Safelight, and Progressive filed a motion for protective order. After a hearing, the trial court conducted an in camera review of the Agreement. The parties entered into a confidentiality agreement that would apply in the event that the trial court required production of the Agreement. A confidential deposition was later taken of Progressive's corporate representative. Lloyd's subsequently filed a motion for release of the Agreement, subject to the terms of the confidentiality agreement.
After conducting a second hearing, the trial court found that specific pages of the Agreement contain trade secrets, which the parties do not dispute. The trial court expressly found that Lloyd's "has a reasonable need for the information which outweighs the defendant's interest in maintaining confidentiality." In doing so, the trial court found "that the agreement contains information that is central to one of the plaintiff's claims." The trial court stated that "the agreement may demonstrate practices that manipulate the competitive prevailing price indemnity and adjustment obligation of the policy." The court found "that the agreement contains information that is potentially admissible and that is reasonably calculated to lead to admissible evidence." In fact, at the second hearing the trial court stated that "[t]he contract presents a source of direct evidence" on "the essential issue of defendant's handling of the insured's claim." Finally, the trial court found that the parties' "confidentiality agreement sufficiently protects the defendant's confidentiality interests, while also permitting the plaintiff access to information necessary to reasonably prosecute its claims." The court ordered the release of the Agreement pursuant to the confidentiality agreement. Progressive now seeks certiorari review.
Certiorari relief from a discovery order is appropriate only if the trial court's ruling (1) departs from the essential requirements of law, (2) results in harm for the remainder of the case, and (3) cannot be corrected on postjudgment appeal. See Lewis Tree Serv., Inc. v. Asplundh Tree Expert, LLC, 311 So.3d 206, 210 (Fla. 2d DCA 2020). Whether the discovery order creates irreparable harm is a jurisdictional question. Bright House Networks, LLC v. Cassidy, 129 So.3d 501, 505 (Fla. 2d DCA 2014) (citing Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002)). If certiorari jurisdiction exists, then we address whether the trial court's ruling constitutes a departure from the essential requirements of law. Id. (citing Harley, 820 So.2d at 448).
It is undisputed that the Agreement contains trade secrets. Review by "[c]ertiorari is particularly appropriate for 'cat out of the bag' discovery orders that would require the disclosure of information that is privileged or otherwise protected from disclosure." Gulfcoast Spine Inst., LLC v. Walker, 313 So.3d 854, 858 (Fla. 2d DCA 2021) (alteration in original) (quoting Lewis Tree, 311 So.3d at 210); see also Bright House, 129 So.3d at 505 ("Orders improperly requiring the disclosure of trade secrets or other proprietary information often create irreparable harm and are thus appropriate for certiorari review." (quoting Grooms v. Distinctive Cabinet Designs, Inc., 846 So.2d 652, 654 (Fla. 2d DCA 2003))). Thus, we address the merits of Progressive's petition and conclude that Progressive has failed to show that the trial court departed from the essential requirements of law.
When a party objects to the disclosure of information that allegedly contains trade secrets, the trial court conducts a three-part analysis and first must determine whether the contested material in fact contains trade secrets, usually requiring an in camera review. Gulfcoast Spine, 313 So.3d at 858 (citing Lewis Tree, 311 So.3d at 210-11). Second, if the material contains trade secrets, the court must ascertain "whether the party seeking production can show reasonable necessity for the requested information." Id. (quoting Lewis Tree, 311 So.3d at 211). The court balances "the need for production" against "the interest in confidentiality." Id. at 859 (citing Lewis Tree, 311 So.3d at 211). And the court must support any ordered disclosure with appropriate findings. Id. Third, if the court decides that "the need for production outweighs the interest in confidentiality," the court must then address "what safeguards should be put in place to protect the information, such as a confidentiality order or other measure." Id. (citing Lewis Tree, 313 So.3d at 211). In Gulfcoast Spine, this court determined that "[t]he trial court departed from the essential requirements of law by ordering production of trade secrets without conducting a balancing test, making findings, or implementing protective measures as required by Florida law." 313 So.3d at 861.
Here, the trial court conducted an in camera review and found that the Agreement contained trade secrets regarding pricing, and the parties do not dispute this finding. The court then balanced the need for production of the trade secrets against the interest in confidentiality. The court noted that Lloyd's bad faith claim included an allegation of a secret pricing agreement between Progressive and Safelite that resulted in insureds obtaining "only partial payment of the no-deductible competitive price windshield indemnity required by the policy." The court found that "the agreement may demonstrate practices that manipulate the competitive prevailing price indemnity and adjustment obligation of the policy." In addition, the court found "that the agreement contains information that is potentially admissible and that is reasonably calculated to lead to admissible evidence" and "that the agreement contains information that is central to one of the plaintiff's claims." The trial court determined that Lloyd's had a reasonable need for the information that outweighed Progressive's interest in maintaining confidentiality. Finally, the court found that the confidentiality agreement sufficiently protected Progressive's interests and also allowed Lloyd's access to information needed "to reasonably prosecute its claims."
In summary, based on the record provided to us, we conclude that the trial court engaged in the appropriate analysis and made the necessary findings in support of its order directing release of the Agreement and compliance with the terms of the parties' confidentiality agreement. Progressive has not shown a departure from the essential requirements of law and is not entitled to certiorari relief.
Petition denied.
SLEET, C.J., and MORRIS, J., Concur.
Opinion subject to revision prior to official publication.