STEVEN PAUL ANDERSON v. MARY MITCHELL

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

STEVEN PAUL ANDERSON, )

)

Petitioner, )

)

v. ) Case No. 2D18-2864

)

MARY MITCHELL, )

)

Respondent. )

___________________________________)

Opinion filed April 5, 2019.

Petition for Writ of Certiorari to the Circuit

Court for Lee County; Geoffrey Henry

Gentile, Judge.

Michael R. D'Lugo and Craig Ferrante of

Wicker, Smith, O'Hara, McCoy & Ford,

P.A., Orlando, for Petitioner.

Bryan S. Gowdy and Meredith A. Ross of

Creed & Gowdy, P.A., Jacksonville; and

Zane Berg of Schlesinger Law Offices,

P.A., Fort Lauderdale, for Respondent.

CASE, JAMES R., Associate Senior Judge.

Steven Paul Anderson seeks certiorari review of an order overruling his

objections to deposition questions and compelling additional depositions in this

automobile negligence action. Anderson asserts that the "accident report privilege" set

forth in section 316.066(4), Florida Statutes (2017), precludes the discovery of

statements made by individuals involved in the accident for the purpose of completing a

crash report. However, the accident report privilege is not a true privilege precluding

the disclosure of these statements; it is a law of admissibility precluding the use of these

statements at trial. Accordingly, the statements are subject to discovery.

In the complaint, Mary Mitchell asserted that Anderson negligently

operated his motor vehicle and struck Mitchell in a crosswalk. Anderson's wife Sandra

was in the front passenger's seat of his vehicle. During the depositions of Anderson, his

wife, and the investigating officers, defense counsel objected to questions about

statements the Andersons made to the officers at the scene. Counsel asserted that the

statements were protected from discovery under the accident report privilege in section

316.066(4), and the witnesses refused to answer those questions.

The trial court entered an order compelling the witnesses to submit to

additional depositions and answer questions regarding statements the Andersons made

to law enforcement at the scene. This is the order that prompted Anderson's petition for

certiorari in this court. Anderson argues that the trial court departed from the essential

requirements of the law by ruling that the accident report privilege in section 316.066(4)

does not preclude the discovery of these statements.

"[R]eview by certiorari is appropriate when a discovery order departs from

the essential requirements of law, causing material injury to a petitioner throughout the

remainder of the proceedings below and effectively leaving no adequate remedy on

appeal." Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). Certiorari review

is appropriate in cases permitting the discovery of privileged information because "there

is 'no remedy for the destruction of the privilege available on direct appeal.' "

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Harborside Healthcare, LLC v. Jacobson, 222 So. 3d 612, 615 (Fla. 2d DCA 2017)

(quoting Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 506 (Fla. 2d

DCA 2006)).

Parties are entitled to "discovery regarding any matter, not privileged, that

is relevant to the subject matter of the pending action." Fla. R. Civ. P. 1.280(b)(1).

Furthermore, "[i]t is not ground for objection that the information sought will be

inadmissible at the trial if the information sought appears reasonably calculated to lead

to the discovery of admissible evidence." Id. Thus, information that is merely

"inadmissible" is discoverable while information that is "privileged" is not.

The question before this court is whether the information protected under

section 316.066(4) is privileged or merely inadmissible. Section 316.066(4) provides:

Except as specified in this subsection, each crash report

made by a person involved in a crash and any statement

made by such person to a law enforcement officer for the

purpose of completing a crash report required by this section

shall be without prejudice to the individual so reporting.

Such report or statement may not be used as evidence in

any trial, civil or criminal. . . . The results of breath, urine,

and blood tests administered as provided in s. 316.1932 or

s. 316.1933 are not confidential and shall be admissible into

evidence . . . .

(Emphasis added.) Under the plain language of the statute, the only limitation on the

information is that it may not be used as evidence at trial. There is no indication that the

information is otherwise protected from disclosure. Thus, the statute makes the

protected information inadmissible, not privileged.

Our conclusion is supported by a comparison of Florida statutes creating

true privileges with statutes creating laws of admissibility. The legislature has created

true privileges by expressly using the term "privilege," making the information

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confidential, and prohibiting its disclosure. For example, the statute creating the

attorney-client privilege provides, "A client has a privilege to refuse to disclose, and to

prevent any other person from disclosing, the contents of confidential communications

when such other person learned of the communications because they were made in the

rendition of legal services to the client." § 90.502(2), Fla. Stat. (2017) (emphasis

added); see also §§ 90.503(2) (using the same key terms to establish the

psychotherapist-patient privilege), .504(1) (using analogous key terms to create the

spousal privilege).

In comparison, the legislature has enacted several statutes like section

316.066(4) that make information inadmissible in court but do not otherwise prohibit its

disclosure. See, e.g., §§ 90.408 (providing that evidence of settlement negotiations "is

inadmissible to prove liability or absence of liability for the claim or its value"), .409

(providing that evidence of payment of medical expenses "is inadmissible to prove

liability for the injury or accident"), .410 (providing that evidence regarding pleas and

plea offers "is inadmissible, except when such statements are offered in a prosecution

under chapter 837").1

In fact, this court has recognized that some of the other statutes making

information inadmissible do not create a true privilege protecting the information from

disclosure. See Sjuts v. State, 750 So. 2d 732, 733 (Fla. 2d DCA 2000) (holding that

1The legislature has also enacted statutes that provide a hybrid of the two.

See, e.g., §§ 395.0193(8), Fla. Stat. (2017) (providing that certain peer review

information "shall not be subject to discovery or introduction into evidence in any civil or

administrative action against a provider"), 766.101(5), Fla. Stat. (2017) (providing that

certain medical malpractice information "shall not be subject to discovery or introduction

into evidence in any civil or administrative action against a provider").

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section 90.410 does not supply "a ground for refusing to answer questions during

discovery"); State v. Castellano, 460 So. 2d 480, 481 (Fla. 2d DCA 1984) ("[T]he rule

protecting offers of compromise [section 90.408] appears to be one more of

admissibility than privilege.").

Anderson argues that this plain language interpretation of the statute

conflicts with the body of law that has developed over time interpreting section

316.066(4). See, e.g., Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984) (holding that

the purpose of section 316.066(4) "is to clothe with statutory immunity" the statements

and communications a driver, owner, or vehicle occupant is legally required to make for

the purpose of completing an accident report); Pastori v. State, 456 So. 2d 1212, 1213

(Fla. 2d DCA 1984) ("[A]ny statements made by petitioner to a police officer for

purposes of completing an accident report would be privileged and, thus,

inadmissible."); Nationwide Ins. v. Monroe, 276 So. 2d 547, 548 n.4 (Fla. 2d DCA 1973)

(providing that statements given in compliance with section 316.066 are "immune from

discovery").

However, the statute has changed substantially over time. The version of

section 316.066(4) in effect until 1982 provided as follows:

All accident reports made by persons involved in accidents

shall be without prejudice to the individual so reporting and

shall be for the confidential use of the department or other

state agencies having use of the records for accident

prevention purposes, except that the department may

disclose the identity of a person involved in an accident

when such identity is not otherwise known or when such

person denies his presence at such accident, and except

that the department shall disclose the final judicial

disposition of the case indicating which if any of the parties

were found guilty. No such report shall be used as evidence

in any trial, civil or criminal, arising out of an accident . . . .

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§ 316.066(4), Fla. Stat. (1971) (emphasis added). In addition to providing that the

accident reports shall not be used as evidence at trial, this version of section 316.066

expressly made the information confidential and prohibited its disclosure.

In 1982, the legislature added a sentence providing an exception to "the

confidential privilege afforded by this subsection" for breath, urine, and blood tests. Ch.

82-155, § 6, Laws of Fla. (emphasis added). Based on this language, courts interpreted

the statute as creating a true privilege. See Brackin, 452 So. 2d at 544; Pastori, 456

So. 2d at 1213; Monroe, 276 So. 2d at 548 n.2. And it became known as the "accident

report privilege." See, e.g., Hammond v. Jim Hinton Oil Co., 530 So. 2d 995, 997 (Fla.

1st DCA 1988); Johnson v. Fla. Farm Bureau Cas. Ins., 542 So. 2d 367, 368 (Fla. 4th

DCA 1988); Hill v. Allstate Ins., 404 So. 2d 156, 156 (Fla. 3d DCA 1981).

However, the legislature substantially amended the statute in 1989 by

deleting (1) the term "privilege," (2) the language making the information confidential,

and (3) the language prohibiting its disclosure outside of the Department. See ch. 89-

271, § 2, Laws of Fla. By deleting this language, the legislature clearly intended to

change the statute from a true privilege to a law of admissibility. Indeed, the legislative

history provides that the statute was amended "to make it clear that statements made to

an officer by a person involved in an accident shall not be admissible in court but shall

otherwise be public record." Fla. H.R. Comm. on Govtl. Ops., PCB GO 89-4 (1989)

Staff Analysis 4 (Mar. 31, 1989). Thus, the cases applying the pre-1989 version of

section 316.066(4) are inapposite.

Unfortunately, courts have continued to refer to the statute as creating an

"accident report privilege" despite the 1989 amendment. See, e.g., Perez v. State, 630

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So. 2d 1231, 1232 (Fla. 2d DCA 1994); Wetherington v. State, 135 So. 3d 584, 585

(Fla. 1st DCA 2014); Alexander v. Penske Logistics, Inc., 867 So. 2d 418, 420 (Fla. 3d

DCA 2003). Some courts have also used language describing the post-1989 version of

section 316.066(4) as making the statements both inadmissible and privileged. See,

e.g., Perez, 630 So. 2d at 1232; Nelson v. State Dep't of Highway Safety & Motor

Vehicles, 757 So. 2d 1264, 1265 (Fla. 3d DCA 2000). However, these statements are

dicta and are therefore not binding on this court.

In conclusion, the current version of section 316.066(4) does not create a

true privilege precluding the disclosure of statements of individuals involved in an

accident for the purpose of completing a crash report. Instead, it is a law of admissibility

that precludes the use of these statements at trial. Thus, the trial court did not depart

from the essential requirements of the law by ruling that statements made by the

Andersons for the purpose of completing a crash report are discoverable.

Petition denied.

MORRIS and BLACK, JJ., Concur.

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