14 Fla. L. Weekly Supp. 107a
Insurance — Personal injury protection — Discovery — Claims adjuster’s log notes — Privilege — Work product — Date of demand letter triggers adversarial relationship for which subsequent entries into adjuster’s notes may be privileged, as notes prepared prior to receipt of demand letter are not prepared in anticipation of litigation — Attorney-client — Production would not violate attorney-client privilege where only notes sought are those prepared prior to demand letter and prior to date insurer was represented by counsel, and insurer did not anticipate that it would be sued at that time
ORLANDO PAIN & MEDICAL REHABILITATION CENTERS, MW, LLC., as assignee of Pagadnjad Altansuvd-Gambat, Plaintiff, vs. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit, Seminole County. Case No. 05-SC-777. August 10, 2006. John R. Sloop, Judge. Counsel: Lisa Bernardini. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
ORDER ON PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF CLAIMS ADJUSTER’S LOG NOTES
This matter came before the Court on August 1, 2006, on Plaintiff’s motion to compel production of the claims adjuster’s log notes, and, having been advised in the premises and having heard argument of counsel, the court finds that:
1. On November 29, 2005, pursuant to Fla. R. Civ. P. 1.350, Plaintiff served a Second Request to Produce to the Defendant, requesting the following document(s):
Copies of any and all computer inputted information relating to the November 6, 2004, motor vehicle accident claim of Jenny Lowe. This request includes but is not limited to adjuster logs, telephone logs, computer notes, computer notepads, or any other information entered into a computer or otherwise maintained in an electronic format by any PIP adjuster in the claim which is the subject of this litigation. In compliance with relevant case law, this request is limited to the production of the insurer’s notes from the date of the insured’s motor vehicle accident until the date the Plaintiff served Defendant with the subject breach of contract lawsuit.
2. The Defendant objected to the Plaintiff’s Second Request to Produce.
3. Courts in Florida have ruled that in a first party breach of insurance contract action, an insured is entitled to review computer notes maintained by his/her insurance company. Courts have limited production to notes that were inputted prior to the first party lawsuit. See Elizabeth Charles-Henry v. Progressive, 9 Fla. L. Weekly Supp. 139a (County Court, 9th Judicial Circuit in and for Orange County, 2001).
4. The Court notes that in general, the adversarial relationship between parties begins when the defendant is sued, and for purposes of considering at what point in time an adjuster’s notes may become work product or attorney client privileged, courts have held that time to be when the defendant is served with the lawsuit and becomes aware of the litigation. However, in the context of litigation of personal injury protection matters such as the instant case, in which a pre-suit demand letter is required as a condition precedent to filing suit, this Court holds that the date of receipt of the demand letter triggers the adversarial relationship for which subsequent entries into the adjusters notes may be privileged.
5. At the hearing, counsel for the Plaintiff conceded this point and made an ore tenus modification of Plaintiff’s motion to compel to seek the adjuster’s notes only through the date of receipt of Plaintiff’s pre-suit demand.
6. The Court rejects Defendant’s argument that the adjuster’s notes prior to receipt of the Plaintiff’s pre-suit demand letter are somehow protected under the work product doctrine. See Cotton States Mutual Ins. Co. v. Turtle Reef Associates, Inc., 444 So. 2d 595 (Fla. 4th DCA 1984) (request to review insurance investigator’s file granted, work product privilege attaches only where documents were prepared in anticipation of litigation). Defendant’s work product argument is not applicable in this case. Progressive’s notes were not prepared in anticipation of litigation because it had not yet received a pre-suit demand from the Plaintiff at the time the notes were taken.
7. Defendant’s argument that production would violate the attorney-client privilege is also in error. The only notes being requested are those taken by the adjuster prior to receipt of Plaintiff’s pre-suit demand letter and prior to the date that Defendant was represented by counsel for this matter. In addition, Defendant Nationwide did not anticipate they were going to be sued related to this claim during this time period. Therefore, this argument must be rejected.
8. Plaintiff’s request is reasonable and is likely to lead to admissible evidence relevant to the issues in this lawsuit.
In consideration of the foregoing, IT IS ADJUDGED that:
Within ten (10) days, the Defendant shall produce the adjuster’s log notes with non-PIP claim notes redacted for the subject claim, from the inception of the claim through the date Defendant received Plaintiff’s pre-suit demand letter.
