21 Fla. L. Weekly Supp. 358b
Online Reference: FLWSUPP 2104KERS
Documents — Work product — Adjuster’s notes in claims file that were revealed
on in camera inspection to be relevant and to be part of ordinary claims
process, not work product, are not privileged — Question certified: When an
insurer in a PIP case disputes coverage or extent of damages, but an in
camera inspection of the insurer’s adjuster notes in a “claims file” reveals
non-work product (which are created as part of the ordinary claims process) that
are potentially relevant on the issue of coverage and extent of damages, may the
court require production of these non-work product adjuster notes as an
exception to the general rule that an insurer’s “claims file” is not
discoverable until the coverage issue has been resolved?
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th
Judicial Circuit in and for Broward County. Case No. 13-6169 COCE (53). November
26, 2013. Robert W. Lee, Judge. Counsel: Steven Lander, Fort Lauderdale, for
Plaintiff. Jessica N. Chapman, Deerfield Beach, for Defendant.
ORDER ON IN CAMERA INSPECTION, and
CERTIFICATION TO THE FOURTH DISTRICT
COURT OF APPEAL AS A QUESTION AFFECTING
THE UNIFORM ADMINSTRATION OF JUSTICE,
PURSUANT TO FLA. STAT. §34.017(1)(b),
RULES 9.030(b)(4) and 9.160, FLA. R. APP. P.1
referred to in the order on August 26, 2013, and the Court’s having reviewed the
documents, and the relevant legal authorities, and the Court’s being
sufficiently advised in the premises, the Court finds as follows:
and other related documents in the Defendant’s file are protected by the “work
product” privilege. As this is the only objection set forth by the Defendant in
its Privilege Log, the Court limits its analysis strictly to this claim of
Background and Findings of Fact
Objections and Compel Responses to Plaintiff’s Requests for Production and
Interrogatories. The Plaintiff’s Motion and Defendant’s objections were set for
hearing for August 26, 2013. The Defendant objected to producing “Claim
File/Adjuster’s Notes” (pages 1-86); “Cover Information Report” (pages 87-94);
“Fire Alpha Search/ISO Search Report” (pages 95-105); “Correspondence” from Exam
Works (pages 106-114); “Correspondence” from State Farm (pages 115-117); and
“Claimant Property Damage” from GEICO (pages 118-215). (Fortunately for the
Court, the documents were Bates-stamped by the Defendant, and any reference to
the page numbers in this case refers to the Bates-stamp page number.) Prior to
the hearing, the Defendant filed its Privilege Log. The Court ordered that these
documents be delivered to chambers for in camera inspection. The
Defendant timely complied.
limits its review to only the Defendant’s claim that items
responsive to these requests are protected by the work product privilege. The
Court’s disposition is as follows:
disputing that the treatment rendered by the Plaintiff is reasonable, related
and medical necessary. More specifically, the Defendant has filed an affirmative
defense alleging that payment for the medical service at issue in this case was
denied as the result of an independent medical examination ordered by State Farm
which took place on September 13, 2012. At a previous hearing, defense counsel
acknowledged that searches for prior claims are conducted by State Farm for
“almost every claim,” not merely those for which litigation is anticipated. The
automobile accident in this case occurred on June 27, 2012. The single service
at issue in this case was rendered on July 26, 2012. A review of the documents
provided by Defendant reveals that this case went beyond the ordinary claims
process, and the parties should have reasonably anticipated litigation, as of
July 12, 2012.
|Claim File/Adjuster Notes||
3, 6, 8, 11, 15, 17-18
20-22, 24-38 (top),
39 (bottom)-82 (top)
1-2, 4-5, 7, 9-10, 12-14,
16, 19, 23, 38 (bottom),
39 (top), 82 (bottom)-86
|Claimant Property Damage||118-215|
cover a period of time involving nothing more than the initial part of the
ordinary claims process, before the Defendant could reasonably have anticipated
litigation, or are clearly relevant to an issue in the case. Moreover, these
non-privileged items are routinely created by State Farm for any PIP claim,
whether litigation is anticipated or not. As noted, based on a review of the
produced items, the Court finds that the Defendant could have anticipated
litigation as early as July 12, 2012. These non-privileged pages are reasonably
calculated to lead to admissible evidence on the issues specifically denied by
the Defendant or raised by the Defendant’s affirmative defense.
Conclusions of Law
that one party can ask the opposing party for almost anything “relevant to the
subject matter of the pending action,” or even further, anything “reasonably
calculated to lead to the discovery of admissible evidence.” Rule 1.280(b)(1).
The rule is subject to one broad caveat: even if potentially relevant, the
materials are protected from disclosure if privileged. Id. One of these
privileges is the work product privilege. As noted by Trawick, this doctrine was
first pronounced in Florida in 1949 in the case of Atlantic Coast Line
Railroad Co. v. Allen,3 following the
decision of the United States Supreme Court in 1947 in Hickman v.
Taylor.4 However, Trawick further
notes that Florida courts have “extended even more protection to work product.”
Trawick’s Fla. Prac. & Proc. §16:4 (2012).
litigation, but the litigation need not be pending at the time.” Id. If a
party asserts a work product privilege, the court simply analyzes whether these
materials were “prepared in anticipation of litigation.”5 Of course, if the materials are not reasonably
calculated to lead to the discovery of admissible evidence, then they are also
protected from disclosure regardless of their work product nature.
least one clear exception: claims files in insurance cases. This area has
produced more than 70 reported appellate decisions which appear to have created,
in this Court’s respectful view, what one of this judge’s law professors may
well have called a “mishmosh of confusion.”6
precise issue in State Farm Florida Insurance Company v. Aloni.7 In this recent insurance case involving coverage
(as in the instant case), the appellate court reiterated the general rule:
“[g]enerally, an insurer’s claim file constitutes work product and is protected
from discovery prior to a determination of coverage.” 101 So.3d at 414. In
Aloni, the plaintiff sought State Farm’s “complete claims file.”
Id. at 413. The trial court conducted an in camera inspection and
ordered State Farm to produce certain items from the file. Id. State Farm
challenged production on grounds of work product privilege and relevancy.
Id. at 413. The appellate court concluded that these documents
constituted work product and accordingly quashed the trial court order. However,
the appellate court noted that notwithstanding the fact that coverage was still
at issue, a party was entitled to have the “trial court conduct an in
camera inspection of the withheld documents to ensure that each
properly meets the specific criteria of the work product and/or attorney-client
privilege.” Id. at 414 (emphasis added). If they are subject to these
privileges, then the party can still attempt to obtain them by showing need for
the materials and undue hardship in obtaining the substantial equivalent. Id.
ruling several years earlier that appeared to clearly set forth which documents
in an insurer’s claims file can be discovered in cases in which the issue of
coverage is still unresolved. In Superior Insurance Company v.
Holden,8 the appellate court stated:
In the present case, the issue of coverage was still
unresolved at the time of the hearing on Superior’s objection to the
Holdens’ request for production. Therefore, the trial court departed from the
essential requirements of law when it overruled Superior’s objection to the
requested discovery. Of course, the Holdens may request that the trial court
conduct an in camera inspection of the withheld documents to ensure that
each properly meets the specific criteria of the work product and/or
attorney-client privilege. The Holdens may also attempt to make the required
showing of a good cause exception to the work product privilege under Rule
of Appeal is buttressed by a later coverage case in which the same appellate
court required a trial court to determine whether documents in an insurer’s
claim file actually constitute work product, Lloyd’s Underwriters at London
v. El-Ad Villagio Condominium Association, Inc.9 Importantly, Aloni, Holden, and
Lloyd’s Underwriters are all coverage cases.
General Insurance Company v. Copertino10 that “ordinarily” a claims file constitutes an
insurer’s work product, and as such is not subject to discovery in a coverage
case. The appellate court noted that the ruling might be different in a bad
faith case, when a claimant might be able to reach otherwise protected work
product. 810 So.2d at 1079. Clearly, the appellate court recognized the
significance of the distinction between a coverage claim and a bad faith claim
in this context: whether work product could be reached.11 Significantly, however, by use of the word
“ordinarily,” the appellate court left open the door to a finding that sometimes
individual items in a claims file might not constitute work product, as the same
appellate court previously recognized in Holden and Lloyd’s at
London, and then later in Aloni.
by a decision authored in 2004 by Judge Griffin of the Fifth District Court of
Appeal, Bankers Security Insurance Company v. Symons.12 In a case involving a coverage dispute and a
request for production of an insurer’s claim file, the appellate court
recognized that the “claims file” was not a safe harbor to shelter otherwise
“non-work product” documents:
Even if the court agrees that a “claims file” is work product, it is
not necessarily true that every document in a claim file is work product.
Putting a document in a claim file doesn’t make it immune; it is only immune if
it is work product.
clear that any shield a claims file has from production is based on the work
product privilege, and not a new freestanding “claims file” privilege.14
standard to require production of an insurer’s claims file in a coverage case.
In Allstate Indemnity Company v. Ruiz,15 the court stated that “[g]enerally, an
insurer’s claim and litigation files constitute work product and are protected
from production. The analysis differs however when an insurance company is sued
for bad faith.” Id. at 1123 (emphasis added). The use of the word
“generally” — meaning “for the most part” — clearly suggests that the rule is
not an absolute one.16 As with
Copertino, discussed above, the door has been left open to find that some
of the materials in a “claims file” may in fact not be work product.17
been faced with a wave of motions and objections challenging the production of
items in an insurer’s claims file. For the most part, the insurer argues that
the entire file, or all adjuster notes, are protected from
discovery, in toto, until coverage is determined, regardless of the work
product nature of anything in the file. As discussed hereinafter, a careful
review of the reported decisions clearly intimates that an item in an insurer’s
claims file which is neither work product nor otherwise privileged is subject to
production even when coverage is still disputed.18 The distinction between a bad faith and a coverage
dispute appears clearly to be the issue of whether otherwise protected
matters may be produced.19 Somehow, this
has morphed into a present-day hard-pressed argument that nothing in a
claims file must be produced in a coverage case, end of analysis, and regardless
of what documents the insurer has placed in the claims file.
inspections of this nature that insurers are routinely placing otherwise clearly
discoverable items in a “claims file” and then asserting that because the item
is now in the “claims file,” it does not have to be produced even if completely
relevant to the issues before the Court. Indeed, in this case, after a review of
the documents, it appears to the Court that many pages would not survive a claim
of work-product because “[a]n insurance company’s claims investigation in its
early stages is conducted in the ordinary course of business [. . .].” Cotton
States Mutual Ins. Co. v. Turtle Reef Associates, Inc., 444 So.2d 595, 596
(Fla. 4th DCA 1984). As more recently stated by the same court, “[t]here must be
some specific matter reasonably indicating litigation beyond the
general business prospects of eventually being sued.” Neighborhood Health
Partnership, Inc. v. Peter F. Merkle, M.D., P.A., 8 So.3d 1180, 1184 (Fla.
4th DCA 2009) [34 Fla. L. Weekly D766a] (emphasis added).
anything in an insurer’s claims file are conflating two discovery issues:
relevancy20 and work product. The Court
surmises that there also may be confusion as to what actually is contained in an
insurer’s “claims file.” It makes no sense to this Court to say that a document
in a claims file that is not work product, but is otherwise reasonably
calculated to lead to the discovery of admissible evidence, should be protected
by some type of penumbral privilege.21
Indeed, often documents in a claims file are relevant to the issue of
coverage.22 Moreover, it would be
fundamentally unfair to permit an insurer to raise affirmative defenses in case,
and then turn around and allow them to shield otherwise non-privileged documents
related to these defenses from discovery which would be otherwise discoverable
under other routine types of litigation.
simple relevancy analysis, i.e., the matters therein are not relevant until
coverage is determined. In a PIP case, however, this is simply not the case. The
appropriate standard for discovery is whether the information may to lead
to admissible evidence, not whether it is relevant in itself. See
Board of Trustees v. American Educational Enterprises, LLC, 99 So.3d 450,
457 (Fla. 2012) [37 Fla. L. Weekly S589a]. In the instant case, the Court cannot
say that these non-privileged pages hold no possibility of leading to
information that may assist the Plaintiff in proving its prima facie case, or
responding the Defendant’s pled defenses.
file until coverage is determined, this Court is unsure why judges are required
to conduct in camera inspections when a “claims file” privilege is
asserted if it does not matter what is in the file. Indeed, when a privilege is
asserted, the trial court must usually conduct an in camera review to
deduce if they are in fact privileged.23
strongly suggest the existence of a “claims file privilege.”24 In the Court’s view, however, a careful review of
the case law reveals that items in a claims file should be subject to
production, even if coverage has not been determined, when the items are
not work product and they otherwise may lead to the discovery of admissible
evidence. In light of case law development in this area, however, confusion is
understandable. Nevertheless, because the Defendant in this case has limited its
objections solely to work product and attorney/client privilege, this Court need
not consider the potential application of any separate “claims file” privilege.
District, as analyzed above, clearly permit the production of the pages
referenced in this Order. As a result, this Court follows the decisions of the
Fourth District. Accordingly, it is hereby
for the pages referenced above. These pages cover nothing more than the initial
part of the ordinary claims process and are clearly relevant to the coverage
issues and affirmative defenses raised by Defendant in this case. The Court
intends to release these non-privileged pages to the Plaintiff after the next
ten (10) days. The remaining pages shall remain under seal. Moreover, the
Defendant is placed on notice that it may be barred from using any of the
privileged documents to support its position in this case, or may be faced with
the possibility that it has waived any privilege if it attempts to do so.
its relation to the apparently nascent “claims file” privilege, as well as
conflicting rulings coming from the trial courts and circuit appellate
courts,25 the Court certifies the
following question to the Florida Fourth District Court of Appeal as a question
affecting the uniform administration of justice:
When an insurer in a PIP case disputes coverage or extent of
damages, but an in camera inspection of the insurer’s adjuster notes in a
“claims file” reveals non-work product (which are created as part of the
ordinary claims process) that are potentially relevant on the issue of coverage
and extent of damages, may the court require production of these non-work
product adjuster notes as an exception to the general rule that an insurer’s
“claims file” is not discoverable until the coverage issue has been
of the Court’s decision in this matter must be filed in the Fourth District
Court of Appeal, and not the Circuit Court.
attorney-client privilege as to 2 pages of “Suit Assignment Correspondence,”
those two pages were not produced to the Court.
Florida Constr. Fund, 720 So.2d 535, 537 (Fla. 2d DCA 1998) [23 Fla. L.
professor Gerald Bennett.
Fla. L,. Weekly D2737a] (on rehearing).
also Federated Nat’l Ins. Co. v. Fortin, 121 So.3d 606, 607 (Fla. 4th DCA
2013) [38 Fla. L. Weekly D1745b] (recognizing continuing vitality of this
portion of the Holden holding).
L. Weekly D283b].
Fla. L. Weekly D652a].
obligation to “reason why,” the Court believes this to be the only logical
reason why there should be a distinction between “bad faith” and “coverage”
cases. See Ginsburg, The Obligation to Reason Why, 37 Fla. L. Rev.
Fla. L. Weekly D2638a].
Cambron, 936 So.2d 1210 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2326a] (a
claims file may contain items not protected by the work product privilege and
therefore subject to production).
immunity as a “claims file privilege” appears to arise from the principle the
violation of a “privilege” leads to “irreparable harm.” See American Home
Assur. Co. v. Vreeland, 973 So.2d 668, 671 (Fla. 2d DCA 2008) [33 Fla. L.
Weekly D469a]; Cambron, 936 So.2d at 1212. If there is no “privilege,”
there can arguably be no irreparable harm if disclosure is ordered.
the English Language 549 (1976). See also Zirkelbach Const., inc. v.
Rajan, 93 So.3d 1124, 1127 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1793a]
(also uses word “generally” when referring to rule); Copertino, 810 So.2d
at 1078 (using the word “ordinarily” when discussing the “general rule” in a
Ins. Co. v. Archer, 45 So.3d 924, 927 (Fla. 2d DCA 2010) [35 Fla. L. Weekly
D2250b] (judge in a coverage case “recognize[s] that much of the claim file may
be work product,” clearly suggesting that some may not be) (Altenbernd, J.,
concurring); Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258
n.2 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D559b] (finding that even though an
insurer’s claims file is “generally” not discoverable in a coverage, documents
in the claims file may be discoverable to the extent “reasonably expected or
intended to be used at trial”).
responded to Plaintiff’s request for production by asserting that it has “no
coverage defense,” State Farm’s challenge to the amount to be paid appears to
trigger a “coverage” issue under appellate case law.
Accident Ins. Co., 74 So.3d 1064, 1069 (Fla. 2011) [36 Fla. L. Weekly S97a]
(Pariente, J., concurring) (discusses “critical role that discovery of the
claims file played in bad faith claims”); Ruiz, 899 So.2d at 1128
(Florida Supreme Court discusses why work product protection needs to be pierced
in a bad faith case); State Farm Florida Ins. Co. v. Puig, 62 So.3d 23,
25 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D608c] (appellate court focuses on
which work product can be reached in a bad faith case); Kmart Corp. v.
Sundmacher, 997 So.2d 1158, (Fla. 3d DCA 2006) [33 Fla. L. Weekly D2760a]
(issue is whether work product can be reached in a bad faith case); Liberty
Mut. Ins. Co. v. Bennett, 939 So.2d 1113, 1114 (Fla. 4th DCA 2006) [31 Fla.
L. Weekly D2495a] (issue is whether otherwise privileged information may be
reached in a bad faith case); XL Specialty Ins. Co. v. Aircraft Holdings,
LLC, 929 So.2d 578, 584 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D1131b]
(same); GEICO General Ins. Co. v. Hoy, 927 So.2d 122, 124 (Fla. 2d DCA
2006) [31 Fla. L. Weekly D1090a] (appellate court ties claims file disclosure to
a coverage issue vs. bad faith analysis).
Co. v. Feinstein, 989 So.2d 763 (Fla. 4th DCA 2008) [33 Fla. L. Weekly
D2204b] (arguing that a claims file is shielded from production either under a
work product or relevancy theory); State Farm Fire & Cas. Co. v.
Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2514e]
(the “claims files [. . .] were irrelevant to the first party dispute
involved in this case”) (emphasis added); State Farm Florida Ins. Co. v.
Gallmon, 835 So.2d 389, 390 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D330b]
(claims files are either “irrelevant to the first-party dispute that this case
presents or are privileged work product”). These decisions do not suggest what
might happen if individual documents in the claims file were sought.
be rooted in a statutory or constitutional privilege, otherwise it would fly in
the face of the Legislature’s directive that privileges against disclosure of
information must be created only by statute or under the Constitution. Fla.
little indication of the contents of a claim file. But see Hoy,
927 So.2d at 124 (using “original claim file” and “accident investigation file”
to refer to the same thing when clearly a claims file contains more than mere
information pertaining to the accident investigation).
at 29; Allstate Indemnity Co. v. Oser, 893 So.2d 675, 677 (Fla. 1st DCA
2005) [30 Fla. L. Weekly D478d]; Holden, 642 So.2d at 1140; Allstate
Ins. Co. v. Walker, 583 So.2d 356, 357 (Fla. 4th DCA 1991). See also
United Services Auto. Ass’n v. Crews, 614 So.2d 1213, 1214 (Fla. 4th DCA
1993) (only way to determine attorney-client protected documents in an insurer’s
claims file is to conduct an in camera inspection).
Florida v. Demmo, 57 So.3d 982, 984 (Fla. 2d DCA 2011) [36 Fla. L. Weekly
D707a]; American Bankers Insurance Company of Florida v. Wheeler, 711
So.2d 1347, 1348 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1449b]. Based on this
Court’s analysis in this Order, the Court concludes that the Demmo and
Wheeler decisions are not good law in the Fourth District on this issue.
confusion in this area, see Udelson v. Nationwide Ins. Co. of Fla., Order
Granting Plaintiff’s Motion to Compel, Case No. 12-25140 CA 20 (Fla. 11th Cir.
Ct. Apr. 20, 2013) [20 Fla. L. Weekly Supp. 1176a]; Cunningham & Fischer,
Picking Cotton: Ordinary Business Records Doctrine as Applied to Insurer’s
Privilege Claims, Fla. B. J., May 2013, at 13-23.
* * *