18 Fla. L. Weekly Supp. 413b
Online Reference: FLWSUPP 1804KOVAInsurance — Discovery — Privilege — Attorney-client — Correspondence with counsel are protected from disclosure by attorney-client privilege — Work product — Computer claim file notes involving no more than general business prospect of eventually being sued are not protected by work product privilege; later notes involving reasonable anticipation of litigation are protected — Adjustments and draft explanations of review are protected by work product privilege, with exception of documents generated during early stages of investigation — Peer review will be subject to disclosure if insurer chooses to use expert or opinion in proceedings
UNIVERSITY CHIROPRACTIC CENTER, INC. (a/a/o Melissa Kovach), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-16032 COCE (53). September 7, 2010. Robert W. Lee, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. David Hwalek, Herssein & Herssein, North Miami, for Defendant.
ORDER ON IN CAMERA INSPECTION
THIS CAUSE came before the Court for in camera inspection of documents as required by this Court’s ore tenus order of August 31, 2010, and the Court’s having reviewed the documents, the entire Court file, and the relevant legal authorities, and the Court’s being sufficiently advised in the premises, the Court finds as follows:
On August 31, 2010, this Court ordered in open court that the Defendant produce documents to be reviewed in camera. The Court received the documents under cover of letter dated September 3, 2010. The items provided by the Defendant, which were segregated into twelve (12) groups, and the Court’s disposition, are as follows:
Item 1. USAA Letter to Counsel dated June 24, 2009 (one page)
Item 2. Computer claim file notes dated April 15, 2010 to July 29, 2010 (three pages).
Item 3. Computer claim file notes dated June 30, 2009 to April 12, 2010 (19 pages).
Item 4. Computer claim file notes dated June 23, 2009 to June 30, 2009 (two pages).
Item 5. Computer claim file notes dated April 29, 2008 to June 23, 2009 (18 pages).
Item 6. Computer claim file notes dated March 21, 2008 to April 29, 2008 (17 pages).
Item 7. Computer claim file notes dated March 21, 2008 to May 1, 2008 (17 pages) [appears to contain almost all entries also in Item 6].
Item 8. Computer claim file notes dated May 2, 2008 to June 23, 2009 (18 pages) [with notation that “the set of notes are duplicates in reverse order].
Item 9. Correspondence and emails to/from USAA and counsel, dated June 23, 2009 to March 16, 2010 (4 pages).
Item 10. Auto Injury Solutions peer review dated March 21, 2008 (3 pages).
Item 11. Adjustments and explanations of review (81 pages).
Item 12. Letters/emails USAA to counsel dated June 23, 2009 to April 16, 2010 (five pages).
The Defendant has claimed work-product and attorney-client privileges as to all of these documents. An earlier claim of trade secret privilege was already disposed of by the Court, with sanctions imposed for demonstrating no colorable trade secret privilege.
As to attorney-client privilege, the Court finds that Items 1, 9 and 12 are covered by the attorney-client privilege and shall not be produced.
As to work-product privilege, and in considering whether an insurance adjuster’s notes are covered by the work-product privilege, the Defendant argues that all insurance adjuster’s notes are protected by the work-product privilege, regardless of the stage of the investigation. This is clearly not the law in this State. Instead, for adjuster’s notes or claim notes, the Court must consider “[i]f these were prepared in contemplation of litigation [. . .]. Mere likelihood of litigation does not satisfy this qualification [. . .]. [A]n insurance company’s claims investigation in its early stages is conducted in the ordinary course of business [. . .].” Cotton States Mutual Ins. Co. v. Turtle Reef Associates, Inc., 444 So.2d 595, 596 (Fla. 4th DCA 1984). As more recently stated by the same court, “[t]here must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually being sued.” Neighborhood Health Partnership, Inc. v. Peter F. Merkle, M.D., P.A., 8 So.3d 1180, 1184 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D766a] (emphasis added).
Based on the Court’s review of the documents submitted, the Court finds that the claim involved “no more than the general business prospect of eventually being sued” until April 29, 2008. As a result, the Court that the following are not covered by the work-product privilege:
Item 6, pages 2 – 17 (except the first 27 lines of page 2).
Item 7, pages 1 – 15 (except the last 17 lines of page 15).
As to item 11, the Defendant explains in its Second Amended Privilege Log that these adjustments and explanations of review are drafts prepared for not only this provider, but also other providers submitting claims for the accident in question. Apparently, the Defendant does not claim any privilege for the actual explanations of review that were sent out, and which the Court surmises have already been provided to the Plaintiff. The Defendant claims these documents are protected by the work-product privilege. The Court agrees, except for pages 67 – 79. These latter pages were generated during the early stages of investigation and clearly do not involve a reasonable anticipation of litigation. While the remaining documents occasionally cover matters prior to April 29, 2008, the actual document was prepared after that date.
As to the remaining items, the Court finds that these pages were not prepared as part of the early stages of the investigation and instead do involve a reasonable anticipation of litigation. As a result. these pages, as well as items 19 and 12 previously noted, shall remain under seal. The Court finally notes that item 10, the peer review, will be subject to disclosure if the Defendant chooses to use Dr. Ford or his opinions at any point in this proceeding.
In sum, the Court finds that portions of numbered items 6, 7 and 11 are covered by neither the work-product privilege nor the attorney-client privilege. After ten (10) days, the Court intends to release these pages, with noted redactions, to the Plaintiff.
