Heritage Property & Casualty Insurance Company v. Rapkin, Rapkin
CourtDistrict Court of Appeal of Florida
Date FiledNovember 4, 2026
Docket1D2026-1153
StatusPublished
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Full Opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2026-1153
_____________________________
HERITAGE PROPERTY &
CASUALTY INSURANCE COMPANY,
Petitioner,
v.
JEFFREY A. RAPKIN, VIRGINIA M.
RAPKIN, FLORIDA DEPARTMENT
OF FINANCIAL SERVICES,
FLORIDA PENINSULA INSURANCE
COMPANY, EDISON INSURANCE
COMPANY, BENJAMIN MANDELL,
and JORDAN LEE,
Respondents.
_____________________________
No. 1D2026-1171
_____________________________
FLORIDA PENINSULA INSURANCE
COMPANY and EDISON
INSURANCE COMPANY,
Petitioners,
v.
FLORIDA DEPARTMENT OF
FINANCIAL SERVICES, HERITAGE
PROPERTY & CASUALTY
INSURANCE COMPANY, JEFFREY
A. RAPKIN, VIRGINIA M. RAPKIN,
BENJAMIN MANDELL, and
JORDAN LEE,
Respondents.
_____________________________
Petitions for Writ of Certiorari—Original Jurisdiction.
November 4, 2026
PER CURIAM.
Heritage Property & Casualty Insurance Company, Florida
Peninsula Insurance Company, and Edison Insurance Company
seek certiorari review of an Order for Pre-Hearing Process that
compels them to disclose sealed records to two public-records
requestors before the trial court determines whether the records
are exempt. Because that ruling causes irreparable harm and
departs from the essential requirements of law, we grant the
petitions and quash the order.
This consolidated certiorari matter arises from public-records
requests tied to a Florida Department of Financial Services
investigation into insurers’ claim-handling practices. Three suits
followed: the insurers sought declaratory and injunctive relief to
prevent disclosure of records concerning claimed trade secrets,
Florida Peninsula and Edison in one action and Heritage in
another, while Jeffrey and Virginia Rapkin petitioned for a writ of
mandamus to compel disclosure. The court consolidated all three
and abated the Rapkins’ mandamus suit pending resolution of the
insurers’ claims that the records are exempt. Benjamin Mandell
and Jordan Lee, the requestor-intervenors, filed public-records
requests of their own and were granted intervention in the lower
proceeding.
Under a joint litigation plan the court adopted, the
Department was to submit redacted and unredacted records to the
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court under seal, after which the court would conduct an in camera
review and hold an evidentiary hearing on trade-secret status. The
Department submitted the records under seal, but the court then
conducted a mere “initial review,” which did no more than identify
which of the 878 sealed pages carried a claimed exemption.
On March 26, 2026, the court entered the Order for Pre-
Hearing Process, which states that the court “will not conduct the
hearing in camera.” Instead, it directs that the sealed records be
provided to the requestor-intervenors, who may “participate fully”
in the evidentiary hearing and engage in discovery, subject to a
confidentiality order. The day after the order was entered, Lee,
who is also engaged in separate litigation against Heritage, served
discovery requests on Florida Peninsula and Edison, and later
noticed the deposition of Heritage’s corporate representative. The
insurers moved for reconsideration, a protective order, and a
temporary stay; on April 16, 2026, the court only granted a
temporary stay. These petitions followed.
To obtain certiorari relief from a nonfinal order, a petitioner
must establish “(1) a departure from the essential requirements of
the law, (2) resulting in material injury for the remainder of the
case (3) that cannot be corrected on postjudgment appeal.”
Lacaretta Rest. v. Zepeda, 115 So. 3d 1091, 1092 (Fla. 1st DCA
2013). The latter two elements constitute irreparable harm, a
jurisdictional condition precedent evaluated first. Id.
Certain information may reasonably cause material injury of
an irreparable nature, such as “cat out of the bag” material that
could be used by an unscrupulous litigant to injure another person
or party outside the litigation. Martin-Johnson, Inc. v. Savage, 509
So. 2d 1097, 1100 (Fla. 1987), superseded by statute on other
grounds, § 768.72, Fla. Stat. The petitioners have made that
showing: the sealed records are claimed to hold such material.
And, although irreparable harm generally cannot be speculative,
an exception applies to the premature dissemination of such
information because “once the documents are disseminated, a
privacy or trade secret interest has been invaded which cannot be
remedied on direct appeal.” Wal-Mart Stores E., L.P. v. Endicott,
81 So. 3d 486, 490–91 (Fla. 1st DCA 2011); see also Allstate Ins.
Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). The Order for Pre-
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Hearing Process threatens this harm by requiring the sealed
records to be produced to the requestor-intervenors.
The confidentiality order the trial court contemplated does not
avoid that result. A protective order permitting trade-secret or
confidential material to be shared is not always sufficient to
prevent harm. See Endicott, 81 So. 3d at 491; Am. Express Travel
Related Servs., Inc. v. Cruz, 761 So. 2d 1206, 1209 (Fla. 4th DCA
2000). “[O]nce the information becomes public, its confidentiality
is lost forever.” Shands Teaching Hosp. & Clinics, Inc. v. Beylotte,
357 So. 3d 307, 309 (Fla. 1st DCA 2023). The risk here is not
hypothetical. Lee served discovery the day after the order
permitting his participation, confirming that the requestor-
intervenors are positioned to obtain and use the claimed-exempt
materials outside the context of the litigation. Ordering production
before a trade-secret determination forecloses the exemption
question and inflicts injury that cannot be remedied on appeal. See
Coventry First, LLC v. State, Off. of Ins. Regul., 30 So. 3d 552, 558–
61 (Fla. 1st DCA 2010) (recognizing a vested property right in “the
continuing confidentiality and exemption of [a provider’s] trade
secrets and other work papers already submitted to the OIR,” and
that disclosure of such records causes “legal and financial
detriment”).
In any event, at this stage the petitioners need not establish
that the records are, in fact, trade secrets. A prima facie showing
of irreparable harm is enough to invoke certiorari review.
Commonwealth Land Title Ins. Co. v. Higgins, 975 So. 2d 1169,
1176 (Fla. 1st DCA 2008). That threshold is met, and certiorari
jurisdiction is proper.
Having established jurisdiction, we turn to whether the trial
court departed from the essential requirements of law. Relief is
reserved for a violation of a clearly established principle of law,
Saints 120, LLC v. Moore, 292 So. 3d 1209, 1212 (Fla. 1st DCA
2020), which can derive from a variety of sources, including “recent
controlling case law, rules of court, statutes, and constitutional
law.” Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla.
2003). This court has previously found “a departure from the
essential requirements of law where, despite the assertion of a
trade secret privilege, the trial court ordered production of
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documents without first conducting an examination of the
documents.” Messer v. E.G. Pump Controls, Inc., 667 So. 2d 321,
322 (Fla. 1st DCA 1995); see also Becker Metals Corp. v. W. Fla.
Scrap Metals, 407 So. 2d 380, 382 (Fla. 1st DCA 1981) (“Without
examination of the items claimed to be a trade secret, how can a
determination be reached?”). That determination usually requires
an in camera review, though the court may instead hold an
evidentiary hearing. Lewis Tree Serv., Inc. v. Asplundh Tree
Expert, LLC, 311 So. 3d 206, 210–11 (Fla. 2d DCA 2020); Sea Coast
Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804, 808 (Fla. 3d DCA
2014).
Moreover, where a timely action is filed, section 624.4213(2),
Florida Statutes, bars release of records containing claimed trade
secrets until a circuit court rules on their trade-secret status. The
trial court did not follow that sequence. It made no exemption
determination, yet ordered the sealed records produced to the
requestor-intervenors and permitted their full participation and
discovery. Respondents’ contention that the court had already
conducted an in camera review misreads the record. The “initial
review” made no trade-secret determination, and the order itself
states that the court “will not conduct the hearing in camera.”
Resolving the exemption at a hearing rather than through in
camera review would have been permissible; ordering production
and full participation of the requestor-intervenors before deciding
exempt status is not. In other words, ordering production before
the trade-secret determination violates the statutory safeguards
and defeats the declaratory actions’ purpose, giving the requestors
access regardless of how the exemption is decided. Even if the
records were found to be trade secrets, production would still
require particularized findings of reasonable necessity that the
trial court never made. KPMG LLP v. State, Dep’t of Ins., 833 So.
2d 285, 286 (Fla. 1st DCA 2002); Laser Spine Inst., LLC v. Greer,
144 So. 3d 633, 633–34 (Fla. 1st DCA 2014).
The trade-secret exemption is not the only protection at stake.
To the extent the records contain sensitive personal information of
non-party insureds, that information is independently protected,
both by statute and by constitutional right. See Thomas v. Smith,
882 So. 2d 1037, 1043–47 (Fla. 2d DCA 2004) (recognizing, under
art. I, § 23, Fla. Const., a legitimate expectation of privacy in social
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security numbers); see also State, Dep’t of Fin. Servs. v. Danahy &
Murray, P.A., 246 So. 3d 466, 468–71 (Fla. 1st DCA 2018)
(upholding, under art. I, § 24(c), Fla. Const., a statutory public-
records exemption protecting insureds’ personal financial and
health information).
Furthermore, the trial court’s finding that the requestor-
intervenors “are in no sense competitors of the Insurers” does not
save the order. The burden of proving trade-secret status rests on
the party asserting it, and ordering production before that status
is adjudicated deprives the petitioners of the opportunity to carry
that burden. Managed Care of N. Am., Inc. v. Fla. Healthy Kids
Corp., 268 So. 3d 856, 860–61 (Fla. 1st DCA 2019). Whether the
requestor-intervenors are competitors thus does not answer the
dispositive question. What matters is whether the records are in
fact exempt, a determination that must be made before they are
ordered to be released.
Therefore, we grant the consolidated petitions and quash the
Order for Pre-Hearing Process. On remand, the trial court shall
determine the exemption and trade-secret status of the disputed
records before ordering any production or access. That
determination must be made through a confidentiality-preserving
in camera inspection or evidentiary hearing that does not disclose
the records to those seeking them. We take no position on whether
the records are trade secrets or otherwise exempt.
Petitions GRANTED; order on review QUASHED.
LEWIS, WINOKUR, and NEFF, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
M. Hope Keating and John K. Londot, Greenberg Traurig, P.A.,
Tallahassee; and Kathy J. Maus, William B. Collum, and Scott E.
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Damon, Butler Weihmuller Katz Craig LLP, Tampa, for Petitioner
Heritage Property & Casualty Insurance Company.
Fernando J. Valle and Matthew C. Scarfone, Colodny Fass,
Sunrise, for Petitioners Florida Peninsula Insurance Company
and Edison Insurance Company.
Jeffrey A. Rapkin, Esq., Port Charlotte, for Respondents Jeffrey A.
Rapkin and Virginia M. Rapkin.
Francis A. Carbone, II, Jett L. Baumann, and Katie B. Privett,
Office of the General Counsel, Florida Department of Financial
Services, Tallahassee, for Respondent Florida Department of
Financial Services.
William F. Merlin, Jr., Shane S. Smith, and Yanet Cordova
Quintero, Merlin Law Group, PLLC, Tampa, for Respondent
Benjamin Mandell.
Joshua R. Brownlee and John A. Tolley, II, JT Law Firm, P.A.,
Boca Raton; and Melissa A. Giasi, Giasi Law, P.A., Tampa, for
Respondent Jordan Lee.
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