16 Fla. L. Weekly Supp. 1149b
Online Reference: FLWSUPP 1612WALT
Insurance — Workers’ compensation — First party bad faith action — Discovery — Work product — Attorney-client privilege — Comments in workers’ compensation adjuster’s notes regarding communications between carrier and its attorney discussing management of underlying workers’ compensation claim and how to defend it before workers’ compensation court are redacted from documents produced before delivery to plaintiff
PETER WALTERS, Plaintiff(s), vs. BROWN & BROWN, INC., et.al., Defendant(s). Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. CACE 07-15516(09). October 28, 2009. David Krathen, Judge. Counsel: Gary M. Farmer, Jr. Steve Chackman. Robert E. Mansbach, Jr. Richard B. Berman. Lawrence Ingram.ORDER ON IN CAMERA INSPECTION REGARDINGPLAINTIFF’S MOTION TO COMPEL DTD 11/2/08
THIS CAUSE having come on to be heard upon the In-Camera inspection of documents produced pursuant to the Order of January 1, 2009 following the Plaintiff’s Motion to Compel (Request to Produce) dated October 2, 2008 and the Court having reviewed the materials provided in-camera, heard argument of counsel, and reviewed the case law provided, makes the following findings of fact and conclusions of law:
The communications identified by the parties center on comments included in the notes of the Worker’s Compensation adjuster contained in the notes and worksheets created in the underlying Worker’s Comp litigation, and the conduct of the defense therein which forms the basis of this first party bad faith litigation. At issue are comments regarding communications between the carrier and its attorney discussing various matters relating to management of the underlying claim, and how to defend it before the Worker’s Compensation Court.
The Florida Supreme Court ruled upon issues concerning application of work product privilege in shielding documents from discovery in first party bad faith litigation. The distinction between third-party and first-party bad faith litigation has been eliminated in favor of the obligation an insurer owes to the insured to deal fairly when the insured seeks first-party coverage or benefits.
It is clear that in an action for bad faith against an insurance company. . ., all materials, including documents, memoranda and letters contained in the insurance company’s file, up to and including the date of judgment in the original litigation, should be produced. . . . [t]here is no basis to apply different discovery rules to the substantively identical causes of action. . . . there is simply no logical or legally tenable basis upon which to deny access to the very information that is necessary to advance such action. . . .
Allstate Indemnity Company v. Ruiz, 899 So.2d 1121 (Fla. 2005).
Citing from Fidelity & Casualty Insurance Co. of New York v. Taylor, 525 So.2d 908 (Fla. 3rd DCA 1987), Ruiz agreed that, . . . . [i]n those cases, like this one, the pertinent issue is the manner in which the company has handled the suit including its consideration of the advice of counsel so as to discharge its mandated duty of good faith.”
Defendant relies upon two cases for the proposition that Ruiz did not abrogate the attorney-client privilege. In West Bend Mutual Insurance Company v. Higgins, 9 So.3d 655 (Fla. 5th DCA 2009), it is clear from the facts that all three of the documents at issue were generated after the “excess” judgment, and therefore serves little assistance in the instant matter.
Application of Liberty Mutual Fire Insurance Company v. Bennett, 939 So.2d 1113 (Fla. 4th DCA 2006), creates conflict with the decision in Ruiz, as apparent by certification of the question to the Florida Supreme Court as one of great public importance. The facts underlying Liberty Mutual may be relevant to this matter, as referenced in the dissenting opinion of Judge Polen, where he queried that “the most telling evidence of bad faith, while otherwise arguably privileged, might be the insurer’s attorneys’ advice to the insurer that it should settle the case for policy limits.”
Ruiz shifted the landscape by receding from Kujawa v. Manhattan National Life Insurance Co., 541 So.2d 1168 (Fla.1989). But the Fourth District is of the opinion that the attorney-client privilege was not at issue in Ruiz. See also Provident Life & Accident Insurance Company v. Peter R. Genovese, M.D., 943 So.2d 321 (Fla. 4th DCA 2006) (See the cogent concurring opinion of Judge Farmer in which he concludes that “[i]t is clear by its very terms that Ruiz applies to all privileges claimed by the carrier as to materials and communications about the underlying personal injury claim up to its disposition) and, Adega v. State Farm Fire & Casualty Ins. Co., 2008 WL 1009719 (S.Dist. Fla.) Therefore, despite this court’s take on Ruiz, and a series of repeated requests by the Fourth District Court of Appeal that the Supreme Court clarify this matter, this has not occurred and, this court must follow decisions of intermediate courts that have spoken without any ambiguity.
ORDERED AND ADJUGED that the redactions sought by the defendants in the In-Camera inspection are sustained, and that those entries covered during the hearing are to be deleted from the copies of the documents produced before the materials are delivered to plaintiff. After completion of the redactions, the documents shall be produced to plaintiff within ten (10) days from the date of this order.
