16 Fla. L. Weekly Supp. 669a
Online Reference: FLWSUPP 167ROBIN
Insurance — Personal injury protection — Discovery — Documents — Work product privilege — Adjuster’s file and initial claim investigation form are protected by work product privilege — Medical provider has not established undue hardship in preparation for trial necessitating invasion of privilege
ALL ABOUT HEALTH AND WELLNESS CENTER, a/a/o James Robinson, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-10428-CC-25 (02). March 26, 2009. Lawrence D. King, Judge. Counsel: Carlos A. Lopez-Albear, Miami, for Plaintiff. Reuven Herssein, Herssein & Herssein, North Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR PROTECTION REGARDING THE ADJUSTER’S NOTES
THIS CAUSE came before the Court on March 16, 2009 for consideration of Defendant, USAA’s Motion for Protection addressing the production of documents by Defendant, which documents are itemized in a privilege log and are contained in the insurance adjuster’s claim file created while handling Plaintiff’s PIP claim and lawsuit. Defendant has timely raised the objection to production of the adjuster’s computer entries contained in the subject documents, and sought an in camera inspection of certain documents claiming various evidentiary privileges including attorney-client privilege and work product privilege pursuant to Fla. Stat. 90.501 (1998).1 See generally Tampa Electric Company v. Toledo, 976 So.2d 1113 (Fla. 2d DCA 2008); Kaye Scholer LLP v. Zalis, 878 So.2d 447 (Fla. 3d DCA 2004).
The court has reviewed the case file, the pleadings, completed an inspection of the privilege log and documents attached thereto, and conducted the required in camera inspection of the documents submitted to the Court under seal on March 24, 2009. Allstate Ins. Co. v. Oser, 893 So.2d 675 (Fla. 1st DCA 2005); Paston v. Wiggs Contracting Co. Ltd., 698 So.2d 933, 934 (Fla. 4th DCA 1997); USAA v. Crews, 614 So.2d 1213 (Fla. 4th DCA 1993); Donner v. Edelstein, 415 So.2d 830, 831 (Fla. 3d DCA 1982); Skorman v. Hounanian of Florida, Inc., 382 So.2d 1376, 1378-79 (Fla. 4th DCA 1980); Stand-Up MRI of Miami, Inc. v. United Automobile Ins. Co., 15 Fla. L. Weekly Supp. 1055a (Fla. 11th Cir. Ct. Sept. 8, 2008).
The Court being otherwise advised in the premises of this discovery dispute, and after consideration of oral argument of counsel, the Court hereby finds that all subject documents, and the contents therein listed in Defendant’s privilege log Ex. A, B, and C, (composite), are privileged and protected from dissemination or production as discovery in this case. The documents contained in Ex. “D” do not qualify for any of the privileges interposed by Defendant.2
The Court specifically finds the protected documents to be work product in nature, created in anticipation of litigation. Southern Bell Tel. Co. v. Deason, 632 So.2d 1377 (Fla. 1994); Ford Motor Company v. Joan Hall Edwards, 997 So.2d 1148 (Fla. 3d DCA 2008); National Sec. Fire & Cas. v. Dunn, 705 So.2d 605 (Fla. 5th DCA 1997); Nationwide Mutual Fire Ins. Co. v. Harmon, 580 So.2d 192 (Fla. 4th DCA 1991) citing Cotton States Mut. Ins. Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984); Anchor Nat. Financial Services, Inc. v. Smeltz, 546 So.2d 760 (Fla. 2d DCA 1989); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981); Shawmut Van Lines, Inc. v. Small, 148 So.2d 556 (Fla. 3d DCA 1963); Sec. 90.502(5) and (9), Florida Evidence Code (2008).
The adjuster’s file and initial claim investigation information contained therein is protected by the work product privilege. Federal Ins. Co. v. Hall, 708 So.2d 976 (Fla. 3d DCA 1998); National Union Fire Ins. Co. of Pittsburg, Pa. v. Florida Construction, Commerce and Industry Self Insurers Fund, 720 So.2d 535 (Fla. 2d DCA 1998) (claims file documents are protected by work privilege when prepared in anticipation of litigation); Fireman’s Fund Ins. Co. v. Signorelli, 680 So.2d 720 (Fla. 2d DCA 1996); American Reliance Ins. Co. v. Rosemont Condominium Homeowner’s Ass’n, Inc., 671 So.2d 250 (Fla. 3d DCA 1996). Plaintiff has not made a sufficient factual showing to otherwise require an invasion of the work product privilege in this circumstance. DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988 (Fla. 3d DCA 1994).
Further, the Court finds no reasonable basis for abrogation of the privilege asserted. Plaintiff has not established that there is undue hardship in the preparation of this case for trial necessitating invasion of the work product privilege. Fla.R.Civ.P. 1.280(b)(3); Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla. 1970); Marshalls of Ma, Inc. v. Minsal, 932 So.2d 444 (Fla. 3d DCA 2006); National Sec. Fire & Cas. Co. v. Dunn, 705 So.2d 605 (Fla. 5th DCA 1997); Dade County School Board v. Soler, 534 So.2d 884 (Fla. 3d DCA 1988) (when party attempting to shield materials establishes them as work product, burden shifts to party seeking discovery to demonstrate need and undue hardship); Florida Cypress Gardens, Inc. v. Murphy, 471 So.2d 203 (Fla. 2d DCA 1985).
WHEREFORE IT IS ORDERED AND ADJUDGED that Defendant’s Motion for Protection is GRANTED in part and DENIED in part. The objections related to the privilege log documents (Ex. A, B, and C) are SUSTAINED.
As to Ex. “D” the objection is OVERRULED.
Defendant shall produce to Plaintiff the twenty-six (26) pages of Composite Ex. “D” within twenty (20) days.
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1Defendant also raises and objects on trade secret grounds which the Court finds inapplicable to the documents reviewed.
2Composite Document Exhibit:
A. Work Product (26 pages)
B. Work Product (3 pages)
C. Work Product (3 pages)
D. Not Subject of Privilege(s) Raised (26 pages)
