Fourth DCA reiterates attorney / client privilege between carrier and its own counsel in underlying action remains intact for purposes of later bad faith action

Insurance — Bad faith — Discovery — Attorney-client privilege — Documents
from insurer’s attorney’s litigation file in underlying coverage case — Trial
court departed from essential requirements of law in requiring production of
attorney-client privileged material on grounds that the privileged information
did not pertain to bad faith aspects of case

GEICO GENERAL INSURANCE COMPANY, Petitioner, v. THOMAS A. MOULTROP and
PATRICIA GUY MOULTROP, Respondents. 4th District. Case No. 4D14-1844. October
22, 2014. Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Roger B. Colton, Senior Judge; L.T. Case
No. 50 2009 CA 42658MB. Counsel: Katina M. Hardee, B. Richard Young, and Adam A.
Duke of Young, Bill, Roumbos & Boles, P.A., Miami, for petitioner. Bard D.
Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach; William E.
Johnson of William E. Johnson, P.A., West Palm Beach; and Todd S. Stewart of the
Law Offices of Todd S. Stewart, P.A., Jupiter, for respondents.

(Per Curiam.) GEICO General Insurance Company petitions for a writ of
certiorari to review an order that allows discovery of attorney-client
privileged communication in a bad faith action.

Following an in camera inspection, a special master determined that a number
of documents from the insurer’s attorney’s litigation file in the underlying
coverage case were privileged but discoverable in this bad faith action. The
special master accepted respondents’ argument that attorney-client information
from the underlying suit would be discoverable unless it pertained to bad faith
aspects of the case.

We agree with petitioner that the order is contrary to Genovese v.
Provident Life & Accident Insurance Co., 74 So. 3d 1064 (Fla. 2011), and
departs from the essential requirements of the law. Availability of the
attorney-client privilege does not depend on whether this is a bad faith case or
whether the information related to legal advice about bad faith. “[W]hen an
insured party brings a bad faith claim against its insurer, the insured may not
discover those privileged communications that occurred between the insurer and
its counsel during the underlying action.” Id. at 1068. Absent an
exception, such as when the insurer places counsel’s advice at issue,
attorney-client privileged information from the underlying suit is not
discoverable in a bad faith case. Id. at 1068-69.

Accordingly, we grant the petition and quash the portion of the order that
requires production of attorney-client privileged material on the grounds that
the privileged information did not pertain to the bad faith aspects of this
case. (Gross, Taylor and Levine, JJ., concur.)