26
Fla. L. Weekly Fed. D22aTop of Form

Insurance
— Bad faith — Failure to settle — Discovery — A party cannot block
discovery of evidence and then introduce the evidence at trial — Plaintiffs
will not be allowed to introduce at trial evidence for which they blocked
discovery — Motion to exclude evidence granted

KEITH L. ANDERSON et al., Plaintiffs, v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, etc., Defendant. U.S. District Court, Northern
District of Florida, Tallahassee Division. Case No. 4:08cv345-RH/WCS. June 24,
2009. Robert L. Hinkle, Judge.

[Editor’s Note: 2009 Order]

ORDER
EXCLUDING EVIDENCE FOR

WHICH
DISCOVERY WAS BLOCKED

The defendant has moved to exclude evidence for which the
plaintiffs blocked discovery. At a hearing today, the plaintiffs conceded that
exclusion is proper. I grant the motion.

I

This is an insurance bad faith case. The underlying case
arose from a wreck involving a truck and a motorcycle. The motorcycle driver,
Dwayne Allen, Sr., died from injuries sustained in the wreck. His personal
representative, Stephanie Allen, sued the truck driver, Keith L. Anderson,
asserting that he was drunk and made a left turn into Mr. Allen, failing to
yield the right of way. Mr. Anderson’s defense attorney, William Hughes, was
provided by Mr. Anderson’s liability insurer, State Farm Mutual Automobile
Insurance Company. State Farm’s policy limit for injuries to a single person
was $25,000. A jury returned a verdict for more than $3 million.

Mr. Anderson and Ms. Allen have joined as plaintiffs in this
lawsuit against State Farm. The plaintiffs assert that State Farm exhibited bad
faith by failing to settle the underlying case within the $25,000 limit. State
Farm says it attempted to settle the case in good faith but was unable to do
so.

Fact discovery has ended. Expert discovery will begin soon.
The trial is four months away.

II

During fact discovery, the plaintiffs frequently invoked the
attorney-client privilege, work-product doctrine, and relevance as grounds to
block specific discovery requests. This occurred most significantly in two
areas.

First, Mr. Anderson faced criminal charges arising from the
wreck. His criminal-defense attorney was Hal Richmond. There has been some
dispute in this case over whether Mr. Richmond also represented Mr. Anderson on
Ms. Allen’s not-yet-filed civil claims. The issue could be significant; State
Farm apparently asserts it relied on Mr. Richmond to communicate with Mr.
Anderson on some matters relating to a possible settlement. The plaintiffs
blocked deposition questions to Mr. Anderson on whether Mr. Richmond
represented him on the civil claims. The plaintiffs similarly blocked inquiries
of Mr. Anderson’s wife Shari Anderson — who was an owner of the truck and thus
was potentially liable for the wreck but who received a bankruptcy discharge
and was dropped from the case prior to trial.

Second, within months after the wreck, Ms. Allen sent State
Farm a letter indicating she would settle for policy limits by a specific
deadline and on specific terms. She says State Farm did not meet the terms.
This is an important part of the plaintiffs’ bad-faith claim. During depositions,
the plaintiffs blocked inquiries to Ms. Allen and to her attorney in the
underlying case, Roosevelt Randolph, on why they insisted on specific terms and
how they would have responded if State Farm had taken various actions.

III

Florida law is less than clear on the scope of
attorney-client privilege and attorney-work-product protection in bad-faith
litigation. Florida law also is less than clear on the relevance of an
underlying plaintiff’s or insured’s motivation in seeking or refusing to settle
on specific terms. Also less than clear is the scope of permissible discovery
on the plaintiff’s or insured’s motivation — and even whether this discovery
question is governed by state or federal law. One court’s view of state law is
set forth in Lee v Progressive Express Ins. Co., 909 So. 2d 475 (4th DCA
2005).

For present purposes, none of this matters. What is clear
is that a party cannot block discovery of evidence and then introduce the
evidence at trial. At the hearing, the plaintiffs took no issue with this
rather obvious proposition. The plaintiffs stood by their objections to
discovery and said they would not seek to introduce evidence inconsistent with
that position.

The plaintiffs will not be allowed to introduce at trial
evidence for which they blocked discovery. This includes the evidence
summarized above and all other evidence for which the plaintiffs blocked
discovery.

IV

For these reasons,

IT IS ORDERED:

The defendant’s motion to exclude evidence (document 84) is
GRANTED. Unless authorized on request made outside the jury’s hearing, the
plaintiffs must not mention, suggest to the jury in any way the existence of,
or offer testimony or other evidence for which they blocked discovery.

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