Florida Office of Insurance Regulation v. Florida Department of Financial Services, ___ So. 3d ___, 40 Fla. L. Weekly D638 (Fla. 1st DCA March 12, 2015)
The Florida Department of Financial Services (DFS), as the receiver of three insolvent insurance companies, sued an accounting firm for failing to prepare accurate financial statements. The Department alleged that if the Office of Insurance Regulation (OIR) had received accurate financial statements, it would have provided the Department with the recommendation to initiate delinquency proceeds one year earlier, which would have avoided harm to the insurance companies and consumers. Based on these allegations, the trial court ruled that the accounting firm was entitled to depose the Commissioner of Insurance, who is the head of OIR, but the appellate court granted OIR’s petition for certiorari and quashed the trial court’s order. The Apex doctrine prevents litigants from deposing high ranking government or corporate officials unless no viable alternative exists. Although no Florida court has adopted the Apex doctrine when discovery has been sought from high ranking corporate officials, it has been applied to high ranking government officials to avoid deterring people from accepting positions as public servants and violating the separation of powers doctrine. The court concluded that the Commissioner’s testimony was unnecessary because the evidence in question could be supplied by expert witnesses on insurance insolvency and “subordinates within OIR who work on recommendations concerning insolvency referrals.” In addition, posing hypothetical questions to high ranking government officials could detract from their ability to perform their public duties and violate the separation of powers between the three branches of government.
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