       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

         PHILADELPHIA INDEMNITY INSURANCE COMPANY,
                          Appellant,

                                    v.

                          DONALD CARLTON,
                              Appellee.

                             No. 4D14-3040

                            [January 7, 2015]

   Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mily Rodriguez-Powell, Judge; L.T. Case
No. CACE 14-004556 03.

   John H. Richards and William E. Peters, Jr. of Boyd Richards Parker &
Colonnelli, P.L., Fort Lauderdale, for petitioner.

  Dean T. Xenick and J. Chris Bristow of Critton, Luttier & Coleman LLP,
West Palm Beach, for respondent.

PER CURIAM.

   Philadelphia Indemnity Insurance Company (“Philadelphia”) seeks
certiorari review of a non-final order which denied its motion for a
protective order and required an individual who resides and works in
Pennsylvania to be deposed in Broward County. We grant the petition.

   In 2008, Donald Carlton applied for insurance on a collectible vehicle
with Grundy Worldwide Collector Vehicle Program (“Grundy Worldwide”),
a division of Philadelphia Insurance Companies. Philadelphia issued the
policy. The vehicle allegedly was stolen in 2013, while a policy between
Carlton and Philadelphia continued to be in effect. Carlton filed a claim
for the loss, but Philadelphia rescinded the policy ab initio and filed a
petition for a declaratory judgment in the circuit court in Broward County
that it had no duty to provide coverage. Within the petition, it described
Grundy Worldwide as its subsidiary.

   In the course of discovery, Carlton noticed the deposition of an
individual, Doug Hostvedt, to be taken in Broward County, Florida.
Philadelphia moved for a protective order based on Florida Rule of Civil
Procedure 1.410(e)(2), which provides, “A person may be required to attend
an examination only in the county wherein the person resides or is
employed or transacts business in person or at such other convenient
place as may be fixed by an order of court.” It explained that Hostvedt was
not Philadelphia’s employee, but was Vice President of “Grundy
Insurance,” and that he resides and is employed in Pennsylvania.

   Carlton responded that in 2009, Hostvedt attended a show in Boca
Raton, Florida, in which Carlton’s vehicle was displayed. At the show,
Hostvedt identified himself as a vice president of Grundy Worldwide, gave
Carlton a business card to that effect (a copy of which Carlton attached),
solicited Carlton to continue his insurance coverage with Grundy
Worldwide, and discussed with Carlton and his son how they might obtain
an increase in the coverage limit. They followed his instructions, and
Grundy Worldwide increased the coverage.

    Carlton explained he sought to depose Philadelphia’s corporate officer
in the forum in which Philadelphia chose to litigate, citing Ormond Beach
First National Bank v. J.M. Montgomery Roofing Co., 189 So. 2d 239, 243
(Fla. 1st DCA 1966). In that case, the court held that, pursuant to the
general rule that plaintiffs are required to give their depositions in the
forum where the action is pending, a corporate plaintiff’s officers or
managing agents generally may be deposed in the county where the
corporation instituted its action, though they reside and transact business
in another. Id. For purposes of the instant action, he argued, Philadelphia
and Grundy Worldwide were the same.

   At the hearing on the motion, Philadelphia represented that Hostvedt
was not its employee; instead, he was the employee of a closely related but
wholly separate corporation, James A. Grundy Agency, which does not
deal with specialty automobiles. 1 The trial court denied Philadelphia’s
motion for protective order, and the instant petition followed.

   We grant the petition. Neither Hostvedt, James A. Grundy Agency, nor
Grundy Worldwide is a party to the underlying lawsuit, which was filed
against Carlton by Philadelphia. “The party seeking to take the deposition
bears the burden of establishing the capacity of the employee sought to be
examined.” Physicians Healthsource, Inc. v. Anda, Inc., No. 12-60798-CIV,
2012 WL 6205044, at *1 (S.D. Fla. Dec. 12, 2012) (citing Margel v. E.F.L.
Gem Lab Ltd., No. 04 Civ. 1514, 2008 WL 2224288, at *8 (S.D.N.Y. May

1 “JAMES A. GRUNDY AGENCY, INC.” appears as the name of the submitting
brokerage on Carlton’s application for his policy from Grundy Worldwide.

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29, 2008)). Here, Carlton failed to demonstrate that Hostvedt was an
officer, director, or managing agent of the petitioning corporation—
Philadelphia—so as to fall within Ormond Beach First National Bank.
Accordingly, Rule 1.410(e)(2) applies and Hostvedt cannot be required to
attend a deposition in Broward County, Florida, but is entitled to be
subpoenaed for deposition where he resides, is employed, or transacts
business. The trial court departed from the essential requirements of law
when it denied Philadelphia’s motion for protective order. We therefore
quash the trial court’s order.

   Petition Granted.

WARNER, TAYLOR and KLINGENSMITH, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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