27 Fla. L. Weekly D1135c
Torts — Insurance — Discovery — Trial court departed from essential requirements of law in compelling insurance company to produce portions of its claim file and to produce a privilege log in personal injury action where insurance company was not a party to the action
ALLSTATE INSURANCE COMPANY, Petitioner, vs. GREGORY LATIMER, GEIMERE LATIMER, and KEVIN HILL, et al., Respondents. 3rd District. Case No. 3D02-746. L.T. Case No. 01-26027. Opinion filed May 15, 2002. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Alan L. Postman, Judge. Counsel: Kubicki Draper, and Caryn L. Bellus, for petitioner. Sheftall & Torres, and William Wolk, and Sandra McClure; and Adams & Adams, and R. Wade Adams, for respondents.
(Before SCHWARTZ, C.J., and GREEN, and RAMIREZ, JJ.)
(RAMIREZ, J.) Allstate Insurance Company has filed a petition for writ of certiorari seeking to quash an order of the trial court compelling it to produce portions of its claim file and to produce a privilege log in this personal injury action. We grant the petition because Allstate, as a non-party, cannot be made to produce its claim file or prepare a privilege log.
A discovery order that requires production of documents protected by the work-product privilege constitutes a departure from the essential requirements of law and is reviewable by writ of certiorari. Federal Ins. Co. v. Hall, 708 So. 2d 976 (Fla. 3d DCA 1998).
The case stems from an automobile accident that occurred on November 17, 2000. A year later, the plaintiffs served Thessalonia Walker and Allen Alonzo Walker with the lawsuit. Allstate is providing a defense to the Walkers. The plaintiffs issued a subpoena directly to Allstate seeking extensive discovery.1 At a hearing on Allstate’s motion for protective order and the plaintiffs’ motion for contempt, the trial court relied on TIG Ins. Corp. of America v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001), which in turn relied on Florida Rule of Civil Procedure 1.280(b)(5) to hold that the insurer’s failure to prepare a privilege log describing the document’s subject matter, purpose for its production, and a specific explanation of why the document is privileged or immune from discovery resulted in a waiver of work product privileges.
Rule 1.280(b)(5) provides:
Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(Emphasis added).
By its very terms, the rule applies only to parties. Allstate is not a party to this litigation. Because the rule does not apply to non-parties, Allstate was under no obligation to prepare a privilege log and, as it did not violate the rule, the trial court could not find a waiver of its privilege.
We therefore grant certiorari and quash the order under review.
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1The subpoena requested:
1. All correspondence received from or sent to Thessalonia Walker and Allen Alonzo Walker (the “Walkers”) from November 17, 2000 to the present, including:
a. All correspondence between Allstate and the Walkers regarding Allen Alonzo Walker’s driving record.
b. All correspondence to Thessalonia Walker regarding the use of any Allstate insured vehicles by Allen Alonzo Walker.
c. Any reservation of rights sent to the Walkers.
d. All correspondence regarding the claims made by the Plaintiffs, including any and all documents sent by Allstate to the Walkers notifying either insured of the Plaintiffs’ settlement offer.
e. Any and all documents sent by Allstate to Thessalonia Walker or Allen Alonzo Walker notifying either insured of their excess liability as related to the Plaintiffs’ injuries.
f. Any and all documents sent by Allstate to Thessalonia Walker or Allen Alonzo Walker offering to indemnify the insureds for excess liability related to the Plaintiffs’ injuries.
g. Any and all documents sent by Allstate to Thessalonia Walker or Allen Alonzo Walker advising either insured of a potential conflict of interest between Allstate as their excess liability carrier and the Walkers.
2. Any and all documents sent to, or received from, third parties regarding the November 17, 2000 accident and/or the Plaintiffs’ claims.
3. All statements made by Thessalonia Walker or Allen Alonzo Walker from November 17, 2000 to present, whether written or recorded. Please note: this request includes witness or party statements contained in adjuster’s notes. You may redact any mental impressions of the adjuster.
4. All statements of any witnesses to or persons involved in motor vehicle accidents with Allen Alonzo Walker from November 17, 2000 to present. Please note: this request includes witness or party statements contained in adjuster’s notes. You may redact any mental impressions of the adjuster.
5. Copies of all photographs of Thessalonia Walker’s 2000 Chevrolet Malibu and of any of the other vehicles struck by that car on November 17, 2000. [Photographic copies to be made at Plaintiffs’ expense by a mutually agreeable photo printer.]
6. All documents not specifically requested concerning the November 17, 2000, motor vehicle accidents involving the Walkers, other than claims file documents regarding the setting of reserves and adjuster’s notes containing the mental impressions of the claims adjusters. Please note that any witness or party statements contained in the adjuster’s notes must be produced as directed above, with the remainder of the note redacted.
(Emphasis in original).
