Insurer’s Representative Must be Deposed Where they Do Business or Reside!‏

The 11th Circuit Sitting in its Appellate Capacity States: the Insurer’s Representative must be deposed where they do business or reside;

It is great to see that the 11th Circuit reversed Judge Pando who regularly requires the defendant insurer to travel from wherever they do business to be deposed wherever the plaintiff sets them. The plaintiff’s Bar has used this as leverage to settle cases where the insurer would have to travel from Wisconsin and pay $1000 for airfare to defend a $500 claim.

The plaintiff’s argument always references the Kaufman v. Kaufman case. The language in that case suggests that if the defendant seeks affirmative relief, then they need to get in their buggy and travel to wherever the plaintiff set their deposition. However, as this decision suggests, affirmative relief is a counter-claim or a third-party claim, not an affirmative defense. That is, affirmative relief is when a party invokes the jurisdiction of the court, not just defends itself with denials and affirmative defenses. Here is the key language from the opinion:

Having clarified that affirmative defenses differ from affirmative relief, we next consider how a defendant’s choice to seek affirmative relief influences the location for a deposition requested by the plaintiff. A defendant “will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief.” Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993) (emphasis added) (citing Kaufman v. Kaufman, 63 So. 2d 196 (Fla. 1952). In the instant matter, AMEX filed an answer with six (6) affirmative defenses. Its answer did not include a counterclaim, cross-claim, or third-party complaint; therefore, AMEX did not seek affirmative relief.

Here is the curious part about all of this: when we set a provider’s office manager or billing manager at anywhere but their office, they object and move for protective order as to the location. Usually they don’t bother to set the motion for protective order for hearing. They just don’t show up.  Then we file a motion to compel, and motion for sanctions, the court requires the defendant to travel! Just the reverse of how the law is to work. Then we got their office, and end up sitting on a stool in the corner to take the deposition. Oh well, it’s PIP-land. Hey, maybe it is more like “Chutes and Ladders”, but seems like we are always getting the chute!

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