Fogarty Bros. Transfer Co. v. Perkins

250 So. 2d 655, 1971 Fla. App. LEXIS 6308

• Court: District Court of Appeal of Florida
• Decided: July 14, 1971
• Docket: No. 71-187
• Status: Published

Opinion

McNULTY, Judge.

In this pending automobile negligence action the defendant Fogarty Bros, was ordered to produce and make available to plaintiff Perkins all accident reports required of its employees by Fogarty Bros, in its regular course of business and pertaining to the instant accident. Particularly, it was further ordered that Fogarty Bros, produce a copy of the accident report which it filed, as required, with the Department of Transportation, Federal Highway Administration. Fogarty Bros, now seeks common law certiorari to review the aforesaid order to produce. We issue the writ and quash the order.

In the first place, and apart from any “work product” rule, Fogarty Bros, as a common carrier in this state is required by F.S. § 350.45(1), F.S.A.1969, to make a report of all accidents and to file the same with the Florida Public Service Commission. That section further provides, however, that “ * * * no such report shall be competent evidence in any court * * We construe this proviso as rendering privileged the required reports. Analogously, they should be no less confidential than are the accident reports required of others by F.S. § 317.131, F.S.A. 1969,¹ nor any more amenable to discovery. Accordingly, insofar as the order to produce reaches just such an accident report, it is clearly erroneous.

Now, insofar as the order reaches other accident reports, whether for the private use of Fogarty Bros, or to be filed with a federal agency, we think they are protected under the “work product” rule. Such reports are clearly within the purview of the decision of our supreme court in Seaboard Air Line Railroad Company v. Timmons² in which “work product” was held to include * * * (2) statements or reports from agents, officers or employees of the defendant company relating to the accident; and (3) records, investigation sheets, memoranda, and photographs, relating to the accident, including any and all information, investigation sheets, etc. * *

We conclude, therefore, that there has been a departure from the essential requirements of law and that Fogarty Bros, is in jeopardy of irreparable prejudice. Accordingly, common law certiorari is appropriate, and the writ shall issue quashing the order here under review.

Certiorari granted.

LILES, A. C. J., and HOBSON, J., concur.

1 . See, F.S. § 317.171, F.S.A.1969, as to the confidentiality of such reports.

2 . (Fln.1952), 61 So.2d 426.