10 Fla. L. Weekly Supp. 209b
Insurance — Personal injury protection — Discovery — Work product — Despite work product objection, insurer is compelled to produce photographs showing damage to motor vehicle before any damage was repaired and before vehicle was sold, disposed of or junked — Insurer’s repair estimate is not protected by work product privilege
JACKIE WILLIAMS, Plaintiff, vs. ALLSTATE INDEMNITY CO., Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. SS-2-10641-RD. January 13, 2003. Charles E. Burton, Judge. Counsel: Michael S. Bendell, Boca Raton, for Plaintiff. Thomas C. Parisi, Tolgyesi, Katz, Hankin & Katz, Hollywood, for Defendant.
ORDER ON MOTION TO COMPEL BETTER PRODUCTION FROM DEFENDANT AS TO REQUEST DATED 8/13/02
This matter came before the court on 1/13/03 on Plaintiff’s motion to compel better production from Defendant:
In this PIP lawsuit, Defense responded to request to produce seeking:
2. Photographs in the possession, custody and control of this Defendant, its agents, servants and/or attorneys showing damage to motor vehicle driven by plaintiff, before any such damage was repaired or before any vehicle was sold, disposed or junked. (limit to 12/9/99 incident.)
Objection, this request calls for the production of documents protected by the work product privilege. However, without waiving this objection, these items have been requested and, to the extent that said items exist and are non-privileged, they will be produced upon receipt.
The court rules that the objection is:
#2 Overruled. Defendant shall produce the items with a written response, (and no further objection is permitted) within 10 days. A response of “to be forwarded upon receipt” or the like is not compliance with this order.
Any photos today would not reflect the damage. The question includes the proper predicate: before any such damage was repaired or before any vehicle was sold, disposed or junked. Thus, this court must order production of the photos. Wackenhut v. Crant-heisz Enterprises, 451 So.2d 900 (Fla. 2d DCA 1984) (Where warehouse fire photos taken before premise was repaired, and warehouse eventually replaced, appellate court granted certiorari compelling production of the photos). See also, Pierson v. Seale, 128 So.2d 887 (Fla. 3d DCA 1961).
In this PIP lawsuit, Defense responded to request to produce seeking:
3. Any and all repair bills and/or estimates showing the extent of damage to Plaintiff’s motor vehicle. (limit to 12/9/99 incident.)
Response: Objection, this request calls for the production of documents protected by the work product privilege. However, without waiving this objection, these items have been requested and, to the extent that said items exist and are non-privileged, they will be produced upon receipt.
The court rules that the objection is:
#3 Defendant shall produce the items with a written response, (and no further objection is permitted) within 10 days. A response of “to be forwarded upon receipt” or the like is not compliance with this order.
Defense’s claim that the insurance company’s repair estimate as work-product is novel! The party asserting work product privilege has the burden of establishing the privilege. Surrette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975). Defense has no basis to assert work product privilege. Further, the vehicle in question was damaged, and repaired. Allstate conducts repair estimates in the ordinary course of its business of handling collision, and liability claims. In any event, now that the vehicle has been fixed, Plaintiff can not now estimate the damage.
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