19 Fla. L. Weekly Supp. 12a
Online Reference: FLWSUPP 1901BULLInsurance — Personal injury protection — Discovery — Work product privilege — Petition for writ of certiorari challenging order requiring insurer to produce adjuster notes generated up until receipt of statutory pre-suit demand letter is granted — Trial court erred in ordering production without first reviewing privilege log, individually analyzing work product objections, and conducting in camera inspection — Order compelling production of matters claimed to be work product presents required potential for irreparable harm
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. SOUTH MIAMI HEALTH CENTER, INC. a/a/o Trinidad Bullen, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-349 AP. L.C. Case No. 09-11477. October 12, 2011. An Appeal from a decision rendered by the Miami-Dade County Court. Andrew Hague, Judge. Counsel: Nancy W. Gregoire, for Appellant. George A. David, for Appellee.
(Before, SCOLA, BERNSTEIN, and RODRIGUEZ, JJ.)
(RODRIGUEZ, Judge.) In this case State Farm seeks review of the trial court order directing it to produce adjustor notes generated up until receipt of the statutory pre-suit demand letter. The standard of review is whether the production order departs from the essential requirements of the law and will cause State Farm irreparable harm throughout the remainder of the case. See Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1149 (Fla. 3d DCA 2009) [33 Fla. L. Weekly D2775a]; CNL Resort Hotel L.P. v. City of Doral, 991 So.2d 417, 420 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2265a]; American Exp. Travel Related Services, Inc. v. Cruz, 761 So.2d 1206, 1208 (Fla. 4th DCA 2001) [25 Fla. L. Weekly D1542a] (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987)).
On December 22, 2008, Trinidad Bullen was involved in an automobile accident and sustained personal injury. He was treated by Plaintiff/Respondent South Miami Health Center, Inc. (“SMHC”) between January 12, 2009, and May 12, 2009. Bullen had a personal injury protection (“PIP”) policy with State Farm insurance Company (“State Farm”), and he assigned his rights to collect PIP benefits to SMHC. State Farm did not pay the full amount requested by SMHC, and in October, 2009, SMHC filed a civil suit against State Farm to collect the outstanding balance. The issue set forth in the Complaint was coverage, not bad faith. State Farm was served with multiple requests for production by SMHC seeking State Farm’s entire claim file, including adjustor notes and emails up until the time that SMHC sent its demand letter.
State Farm objected to producing the files pursuant to the work product doctrine. In support of its work product objection, State Farm also filed a privilege log listing the documents for which it sought protection. The trial court held a hearing on a motion to compel production of the documents, and subsequently entered an order (“Production Order”) giving State Farm 30 days to submit all “adjustor notes up until receipt of the first demand letter . . . .” The production order further provided that State Farm could request an in camera inspection if it deemed “something in the adjustor notes uniquely and extraordinarily privileged.” (emphasis added). State Farm then petitioned this court for a Writ of Certiorari.
It is well settled that documents protected by work product immunity must not be lightly invaded. Intercontinental Properties, Inc. v. Samy, 685 So. 2d 1035, 1036 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D203a]. Documents are protected by the work product doctrine when they are prepared “[i]n response to some event which foreseeably could be made the basis of a claim in the future.” Marshall of MA, Inc. v. Minsal, 932 So.2d 444, 445 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1425a]. “Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Florida Const., Commerce & Indus. Self Insurers Fund, 720 So. 2d 535, 537 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1561c] (quoting Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760 (Fla. 2d DCA 1989)).
In the instant case, the correct standard was not applied during the hearing. Instead, the trial court created its own standard, “uniquely and extraordinarily privileged,” in evaluating whether the documents were protected by the work product doctrine. The trial court misapplied the law in holding that no document prepared prior to SMHC’s demand letter was created in anticipation of litigation. In addition, there is no indication that the lower court reviewed State Farm’s privilege log or any documents identified therein.
Therefore, we find that the trial court departed from the essential requirements of the law in issuing the production order without first reviewing the privilege log, individually analyzing the work product objections, and conducting an in camera inspection. See Allstate Insurance Company, Inc. v. Walker, 583 So.2d 358 (Fla. 4th DCA 1991) (noting that when the work product privilege is asserted, the court must hold an in camera inspection of the materials to determine the applicability of the privilege.); See also United Services Auto. Ass’n v. Buckstein, 891 So.2d 1153, 1154 (Fla. 4th DCA 2005 [30 Fla. L. Weekly D290c]); Ashemimry v. Ba Nafa, 847 So.2d 603, 605 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1459d]; Del Carmen Calzon v. Capital Bank, 689 So.2d 279, 281 (Fla. 3d DCA 2003) [20 Fla. L. Weekly D2603a].
The standard of review also requires an analysis of whether or not State Farm will suffer irreparable harm. “Orders compelling production of matters claimed to be . . . work product doctrine present the required potential for irreparable harm.” Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021, 1022 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1705a] (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)). That analysis was not conducted.
Accordingly, this Court grants the petition, quashes the production order and remands with instructions for the trial court to conduct proceedings consistent with this opinion, including an in camera review of the documents in question.
Additionally, Respondent’s (SMHC) petition for attorney’s fees is DENIED.
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