23
Fla. L. Weekly Supp. 415a

Insurance
— Homeowners — Wind and hail damage to roof — Discovery — Non-parties —
Work product privilege does not apply to file containing documents pertaining
to inspection of insured residence by non-party that had contracted with
insured for inspection of home where documents were not prepared in
anticipation of litigation

ALRON CONSTRUCTION, LLC A/A/O MARTIN PALMA, Plaintiff, v.
FEDERATED NATIONAL INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial
Circuit in and for Orange County. Case No. 2014-CA-10148-O. October 9, 2015.
Honorable Keith F. White, Judge. Counsel: Katie Monroe and Lee Jacobson, Hale,
Hale & Jacobson, P.A., Orlando, for Plaintiff. Nina Jacobs, Simon, Reed
& Salazar, P.A., Orlando, for Defendant.

ORDER
ON DEFENDANT’S OBJECTION TO

NON-PARTY
PRODUCTION PURSUANT TO FLORIDA

RULE
OF CIVIL PROCEDURE 1.351(B)

THIS CAUSE came on for hearing on May 20, 2015 and September
17, 2015, the Court having heard argument of counsel and being otherwise fully
advised in the premises, ORDERS AND ADJUDGES as follows:

1. This lawsuit involves a claim for homeowners’ insurance
benefits, specifically alleged damages to the insured’s roof caused by wind and
hail.

2. After receiving notice of the claim, Defendant utilized
Donan Forensic Engineering (hereinafter “DONAN”) to perform an inspection of
the roofing structure and provide an opinion as to causation and damages, if
any.

3. After receiving the opinions of DONAN, Defendant wrote to
its insured denying the claim for insurance benefits for any claimed damages to
the roof, citing in substantial portion the findings of DONAN.

4. Plaintiff, pursuant to Rule 1.351 propounded a Notice of
Production from Non-Party to DONAN seeking the entire file pertaining to the
inspection of the residence of Defendant’s insured, Martin Palma.

5. Defendant objected to entirety of the Production citing
the work product, claims file (irrelevancy) and consulting expert privileges.

6. After the original hearing, the Court ordered the
Defendant to retrieve all documents from DONAN responsive to the production and
provide them to the Court for in camera inspection.

7. After in camera inspection, Defendant’s objections are
overruled.

8. The party asserting work product privilege bears the
burden of presenting evidence that the documents sought are indeed prepared in
anticipation of litigation unless manifestly apparent on the face of the
withheld documents the privilege attaches.

9. After inspection, all of the documents reviewed do not
manifestly appear to be prepared in anticipation of litigation.

10. Defendant’s burden has not been met. Defendant did not
file any affidavits attesting to the fact that the documents were prepared in
anticipation of litigation. Argument of counsel is not enough.

11. Moreover, the documents themselves reveal that they are
not prepared in anticipation of litigation.

12. The DONAN report and the denial letter citing to the
report all were prepared prior to litigation and were used to make a
determination on the claim and thus were clearly not made in anticipation of
litigation.

13. Defendant has a contract with the insured and Defendant
performed an obligation (inspection of the home) in accord with its duties
under the contract of insurance.

14. The only way for the Court to find that these documents
were prepared in anticipation of litigation, or protected from disclosure as a
result of the creation of documents or opinions formed by a litigation consulting
expert would be if:

a.
Defendant presented evidence, under oath, that Defendant knew it was going to
deny the claim upon submission of the claim; or

 

b.
That no matter what the findings of the DONAN report were, Plaintiff would have
filed a lawsuit anyways.

15. There is no evidence of either (a) or (b) above. The
documents are merely evidence of Defendant’s performance of its obligations
under the contract of insurance and are thus discoverable.

16. At the hearing, the Court has provided Plaintiff the
documents turned over to it by the Defendant.