Evanston Insurance Company v. Franck's Lab, Inc. et al
ORDER denying without prejudice 38 Franck's Motion to Compel Production of Documents. Signed by Magistrate Judge Philip R. Lammens on 10/8/2013. (AR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
EVANSTON INSURANCE COMPANY,
Case No: 5:12-cv-603-Oc-UAMHPRL
FRANCKS LAB, INC., FRANCKS
PHARMACY, INC., FRANCKS
INFUSION PHARMACY, FRANCKS
HOMECARE, LLC and FP
This matter is before the Court on Franck’s Motion to Compel Production of Documents.
(Doc. 38). Plaintiff has filed a response in opposition (Doc. 41).
In this action, Plaintiff Evanston Insurance Company (“Evanston”) seeks a declaration of
the parties’ rights and liabilities with respect to insurance coverage under an insurance policy
issued to Franck’s Lab, Inc., Franck’s Pharmacy, Inc., Franck’s Infusion Pharmacy, Franck’s
Home Care LLC, FP Pharmaceuticals, Inc. and Franck’s Healthy Lifestyles (collectively
“Franck’s”) in connection with various claims and lawsuits arising out of injuries allegedly
sustained by individuals who received injections of certain pharmaceutical products compounded
by Franck’s. On May 23, 2013, Franck’s served Evanston with the First Request for Production.
(Doc. 38-1). At issue is Request for Production No. 10 that seeks:
All documents, other than the Policy, generated, maintained, or received by you that
define, construe, interpret, comment on the interpretation of, analyze or discuss the
meaning or application of the following exclusions of the Policy:
(a) The “Mold Exclusion;” and
(b) The “Illegal Drug Exclusion.”
This request includes, without limitation, claims manual(s), training materials,
interpretative materials, best practice guides, memoranda, newsletters, underwriting
documents, sales and marketing materials, articles published in trade or legal periodicals,
articles written for claims professionals or seminars, and home office directives and
Evanston objected on various grounds, including that the requested information is not
relevant to the Court’s determination of the coverage issues.
Pursuant to Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party.”
Relevance, for purposes of discovery, is construed broadly to include any matter that “bears on,
or that reasonably could lead to other matter that could bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253
(1978). Although the scope of discovery is broad, it is not without limits. Washington v. Brown
& Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992).
Franck’s contends that the requested interpretative materials are relevant as to whether
the Mold and/or Illegal drug exclusions are ambiguous. Under Florida law, the construction of
an insurance contract, and the determination of whether a policy term is ambiguous, is a question
of law to be decided by the Court. See e.g., Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157
(Fla. 1985); Roberts v. Florida Lawyers Mutual, 839 So.2d 843, 845 (Fla. App Ct. 2003); Gulf
Tampa Drydock Co. v. Great Atl. Ins. Co., 757 F.2d 1172, 1174 (11th Cir. 1985). Insurance
contracts are construed according to their plain meaning. Taurus Holdings, Inc. v. USF&G, 913
So.2d 528, 532 (Fla. 2005). An insurance policy is ambiguous if it is susceptible to more than
one reasonable interpretation. Washington Nat. Ins. Corp. v. Ruderman, 117 So.3d 943 (Fla.
Extrinsic evidence cannot be used to create or prove an ambiguity.
Chevrolet v. Southeastern Fid. Ins. Corp., 636 So.2d 700, 705 (Fla. 1993); Philadelphia Am. Life
Ins. v. Buckles, 350 Fed. Appx. 376, 380 (11th Cir. 2009). Thus, under Florida law, it is for the
Court to determine, as a matter of law, whether the exclusions are clear and unambiguous based
on the plain language of the policy, without consideration of extrinsic evidence.
Even if the policy was found to be ambiguous, it appears that the requested interpretative
materials would still be irrelevant based on the Florida Supreme Court’s recent ruling in
Washington Nat. Ins. Corp. v. Ruderman, 117 So.3d 943 (Fla. 2013). In Ruderman, the Florida
Supreme Court considered the following certified question from the Eleventh Circuit:
If an ambiguity exists in this insurance policy – as we understand that it does –
should courts first attempt to resolve the ambiguity by examining available
Ruderman, 117 So.3d at 945.
After finding that the subject policy provision was ambiguous, the Florida Supreme Court
answered the certified question in the negative. The Court held that “[u]nder Florida law, [when
a] policy is ambiguous it must be construed against the insurer and in favor of coverage without
resort to consideration of extrinsic evidence.” Id. at 952.
Although Franck’s cites the Ruderman case, it fails to explain (or even mention) how the
requested interpretative evidence could be relevant in light of the Florida Supreme Court’s
ruling. (Doc. 38 at 5). Instead, Franck’s relies upon a number of cases -- all of which pre-date
the Ruderman decision and/or are from other jurisdictions. (Doc. 38 at 6-7, and cases cited
Accordingly, Franck’s Motion (Doc. 38) is DEN
NIED without prejudic to renewa if it
can argu in good faith that despite th Ruderma case, th requested interpret
material are releva
DONE and ORDERED in Ocala, Flo
orida on Oct
tober 8, 2013.
Counsel of Record
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