21 Fla. L. Weekly Supp. 27a
Online Reference: FLWSUPP 2101STAT
Insurance — Personal injury protection — Discovery — Work
product — Adjuster’s notes — In PIP case in which breach of contract or
coverage are still in issue and in which there is no bad faith claim, discovery
of adjuster’s notes is prohibited by work product privilege
product — Adjuster’s notes — In PIP case in which breach of contract or
coverage are still in issue and in which there is no bad faith claim, discovery
of adjuster’s notes is prohibited by work product privilege
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. SOUTH MIAMI
HEALTH CENTER, INC., Respondent. Circuit Court, 11th Judicial Circuit
(Appellate) in and for Miami-Dade County. Case No. 12-031 AP. L.C. Case No.
09-5571 CC 25 (04). October 16, 2013. An appeal from a decision of the County
Court, Civil Division, Miami-Dade County. Counsel: Nancy W. Gregoire,
Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, and Matthew D. Hellman, Matt
Hellman, P.A., for Petitioner. George A. David, for Respondent.
HEALTH CENTER, INC., Respondent. Circuit Court, 11th Judicial Circuit
(Appellate) in and for Miami-Dade County. Case No. 12-031 AP. L.C. Case No.
09-5571 CC 25 (04). October 16, 2013. An appeal from a decision of the County
Court, Civil Division, Miami-Dade County. Counsel: Nancy W. Gregoire,
Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, and Matthew D. Hellman, Matt
Hellman, P.A., for Petitioner. George A. David, for Respondent.
(Before SMITH, HIRSCH, and REBULL, JJ.)
[Editor’s note: Motion for rehearing pending.]
(REBULL, Judge.) The issue presented by this petition for writ of certiorari
is whether five sheets of paper which contain notes of State Farm’s insurance
adjuster are protected from discovery under the work product privilege. Because
we determine that the order requiring that these documents be produced departs
from the essential requirements of law and will cause irreparable harm which
cannot be remedied on appeal following a final judgment, we grant the petition
and quash the order dated December 16, 2011. See State Farm Florida Ins. Co.
v. Desai, 106 So. 3d 5 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D85b]; State
Farm Florida Ins. Co. v. Ramirez, 86 So. 3d 1198 (Fla. 3d DCA 2012) [37 Fla.
L. Weekly D1051a].1
is whether five sheets of paper which contain notes of State Farm’s insurance
adjuster are protected from discovery under the work product privilege. Because
we determine that the order requiring that these documents be produced departs
from the essential requirements of law and will cause irreparable harm which
cannot be remedied on appeal following a final judgment, we grant the petition
and quash the order dated December 16, 2011. See State Farm Florida Ins. Co.
v. Desai, 106 So. 3d 5 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D85b]; State
Farm Florida Ins. Co. v. Ramirez, 86 So. 3d 1198 (Fla. 3d DCA 2012) [37 Fla.
L. Weekly D1051a].1
The record reflects that Vanessa Castillo was involved in a car accident on
July 7, 2008. She began treatment with South Miami Health Center on July 23,
2008 for injuries she alleges she sustained in the accident. On July 29, 2008,
Ms. Castillo or South Miami Health Center, or both, first notified State Farm of
the accident and the claim for PIP benefits. The documents at issue are the
State Farm adjuster’s notes from July 29, 2008 up to and including September 17,
2008.
July 7, 2008. She began treatment with South Miami Health Center on July 23,
2008 for injuries she alleges she sustained in the accident. On July 29, 2008,
Ms. Castillo or South Miami Health Center, or both, first notified State Farm of
the accident and the claim for PIP benefits. The documents at issue are the
State Farm adjuster’s notes from July 29, 2008 up to and including September 17,
2008.
These notes were part of State Farm’s claims file. In its response brief in
this appellate proceeding, South Miami Health Center notes that “State Farm
produced all documents out of its claims file, except for the ones it deemed
work product privilege. State Farm produced close to 526 pages from its claims
file in response to SMHC’S Request for Productions.” According to South Miami
Health Center, “State Farm only withheld 17 pages from its claims file . . . .”
This petition, however, only concerns the five sheets of paper to which we
referred at the outset.
this appellate proceeding, South Miami Health Center notes that “State Farm
produced all documents out of its claims file, except for the ones it deemed
work product privilege. State Farm produced close to 526 pages from its claims
file in response to SMHC’S Request for Productions.” According to South Miami
Health Center, “State Farm only withheld 17 pages from its claims file . . . .”
This petition, however, only concerns the five sheets of paper to which we
referred at the outset.
The trial court reviewed in camera the adjuster’s notes at issue. In response
to our order, State Farm filed those same documents under seal with this Court
so that we may properly evaluate the claim of work product privilege. The trial
court did not make any findings of fact. We are presented with the same
materials which the trial court had before it when it made its decision.
Consequently, since we are in the same position as the trial court, our review
of the applicability of the work product privilege to the documents at issue is
de novo.
to our order, State Farm filed those same documents under seal with this Court
so that we may properly evaluate the claim of work product privilege. The trial
court did not make any findings of fact. We are presented with the same
materials which the trial court had before it when it made its decision.
Consequently, since we are in the same position as the trial court, our review
of the applicability of the work product privilege to the documents at issue is
de novo.
Twice recently the Third District Court of Appeal has granted petitions for
writs of certiorari and applied Florida law which prohibits discovery of claims
file documents and claims handling materials where a breach of contract or
coverage issue is still pending and the case does not involve a bad faith claim.
See State Farm Florida Ins. Co. v. Desai, 106 So. 3d 5 (Fla. 3d DCA 2013)
[38 Fla. L. Weekly D85b]; State Farm Florida Ins. Co. v. Ramirez, 86 So.
3d 1198 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1051a]. This is in keeping with
the law as set forth by the Florida Supreme Court in Allstate Indemnity
Company v. Ruiz, 899 So. 2d 1121 (Fla. 2005) [30 Fla. L. Weekly S219c].
Indeed, in an appellate proceeding involving a bad faith action, the Third
District Court of Appeal characterized the law as follows: “In Ruiz, the
Florida Supreme Court held that in the bad-faith context, the normally
automatic work product protection afforded to certain claim file documents will
not bar their production. State Farm Florida Ins. Co. v. Puig, 62 So. 3d
23, 26 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D608c] (emphasis added); see
generally State Farm Florida Ins. Co. v. Gallmon, 835 So. 2d 389 (Fla. 2d
DCA 2003) (adjuster notes included in claims file materials protected by work
product privilege); Federal Ins. Co. v. Hall, 708 So. 2d 976 (Fla. 3d DCA
1998) [23 Fla. L. Weekly D787c] (granting cert. petition for adjuster notes as
work product).
writs of certiorari and applied Florida law which prohibits discovery of claims
file documents and claims handling materials where a breach of contract or
coverage issue is still pending and the case does not involve a bad faith claim.
See State Farm Florida Ins. Co. v. Desai, 106 So. 3d 5 (Fla. 3d DCA 2013)
[38 Fla. L. Weekly D85b]; State Farm Florida Ins. Co. v. Ramirez, 86 So.
3d 1198 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1051a]. This is in keeping with
the law as set forth by the Florida Supreme Court in Allstate Indemnity
Company v. Ruiz, 899 So. 2d 1121 (Fla. 2005) [30 Fla. L. Weekly S219c].
Indeed, in an appellate proceeding involving a bad faith action, the Third
District Court of Appeal characterized the law as follows: “In Ruiz, the
Florida Supreme Court held that in the bad-faith context, the normally
automatic work product protection afforded to certain claim file documents will
not bar their production. State Farm Florida Ins. Co. v. Puig, 62 So. 3d
23, 26 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D608c] (emphasis added); see
generally State Farm Florida Ins. Co. v. Gallmon, 835 So. 2d 389 (Fla. 2d
DCA 2003) (adjuster notes included in claims file materials protected by work
product privilege); Federal Ins. Co. v. Hall, 708 So. 2d 976 (Fla. 3d DCA
1998) [23 Fla. L. Weekly D787c] (granting cert. petition for adjuster notes as
work product).
This case is not in the bad-faith context. Breach of contract or coverage, or
both, are still in dispute. So, the “normally automatic work product protection”
applies. This is plainly not a case where an insurer has simply asserted a
blanket work product privilege for all documents which may be contained within a
claims file. Nor is it a case where it is alleged that an insurer has placed a
document which is otherwise not privileged in a claims file in an attempt to
inappropriately cloak the document with a privilege. We have reviewed the
specific documents at issue in light of the record as a whole, and hold that
they are entitled to work product protection. In so doing, we are persuaded by
the following observations by Professor Ehrhardt with regard to the law on the
work product privilege:
both, are still in dispute. So, the “normally automatic work product protection”
applies. This is plainly not a case where an insurer has simply asserted a
blanket work product privilege for all documents which may be contained within a
claims file. Nor is it a case where it is alleged that an insurer has placed a
document which is otherwise not privileged in a claims file in an attempt to
inappropriately cloak the document with a privilege. We have reviewed the
specific documents at issue in light of the record as a whole, and hold that
they are entitled to work product protection. In so doing, we are persuaded by
the following observations by Professor Ehrhardt with regard to the law on the
work product privilege:
The work product privilege only applies to materials obtained or
developed in anticipation of litigation or for trial. However, there is no clear
indication in the appellate decisions of when litigation is “anticipated” so
that the work product privilege is applicable. For example, when an
investigation follows a serious accident, there is disagreement whether the
materials were assembled in anticipation if litigation has not been
threatened.
The Supreme Court of the United States has implied that the
“anticipation of litigation” requirement should be broadly construed. In
Upjohn Co. v. United States, the court, in discussing work product as it
applies to materials based upon oral statements of witnesses, indicated its
belief that the work product doctrine applied to materials gathered during a
corporation’s internal investigation of possible wrongdoing. Thus, although
there was no immediate threat of litigation, the possibility of governmental or
private action was sufficient to invoke the privilege. In today’s
litigious society, a broad definition of “anticipation of litigation,” which
appears to be the view adopted by a majority of the Florida decisions, is
appropriate.
1 Fla. Prac., Evidence § 502.9 (2013 ed.) (emphasis added) (internal
footnotes omitted).
footnotes omitted).
For all of these reasons, we grant the petition for writ of certiorari and
quash the December 16, 2011 order mandating that the documents at issue be
produced. In addition, the Petitioner’s Motion for Appellate Attorney’s Fees is
granted, and the Respondent’s Motion for Appellate Attorney’s Fees is denied. We
remand to the trial court for proceedings consistent with this opinion. (SMITH
and HIRSCH, JJ., concur.)
quash the December 16, 2011 order mandating that the documents at issue be
produced. In addition, the Petitioner’s Motion for Appellate Attorney’s Fees is
granted, and the Respondent’s Motion for Appellate Attorney’s Fees is denied. We
remand to the trial court for proceedings consistent with this opinion. (SMITH
and HIRSCH, JJ., concur.)
__________________
1We reject without further comment South
Miami Health Center’s remaining arguments, including its arguments that this
petition is untimely, that State Farm failed to present a sufficient record of
the proceedings before the trial court, that State Farm admitted that coverage
is not an issue, and that State Farm obtained from the trial court the relief it
requested.
Miami Health Center’s remaining arguments, including its arguments that this
petition is untimely, that State Farm failed to present a sufficient record of
the proceedings before the trial court, that State Farm admitted that coverage
is not an issue, and that State Farm obtained from the trial court the relief it
requested.
* * *