20 Fla. L. Weekly Supp. 1229a
Online Reference: FLWSUPP 2012AGUIInsurance — Personal injury protection — Discovery — Work product privilege — Adjuster notes and investigative materials generated prior to demand letter were generated in ordinary course of business and not in response to event which foreseeably could be made the basis of a future claim — Work product privilege does not apply to these documents
JERRY AGUIAR, Plaintiff, v. GEICO, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division. Case No. 11-20793 SP 25 (04). September 18, 2013. Nuria Saenz, Judge. Counsel: George A. David, Coral Gables, for Plaintiff. Wesley B. Colgan, III, Miami, for Defendant.
ORDER TO PRODUCE AFTER IN-CAMERA INSPECTION
THIS CAUSE came before the Court on an In-Camera Inspection. The Court having previously heard argument of counsel, reviewed all pertinent portions of the court file, considered applicable statutes and controlling case law, the Court finds as follows:
1. The Plaintiff propounded a Request for Production on the Defendant.
2. The Defendant produced a number of documents but claimed work product privilege as to other documents.
3. The Court conducted an in-camera inspection on September 18, 2013. (“When the work product and attorney client privileges are asserted, the court must hold an in camera inspection of the discovery material at issue in order to rule on the applicability of the privileges.”) Allstate Insurance Company, Inc. v. Walker, 583 So. 2d 356 (4th DCA 1991).
4. The standard to be applied when determining whether documents are protected from discovery is whether they were prepared in response to some event which foreseeably could be made the basis of a claim in the future. Marshalls of MA, Inc., v. Minsal, 932 So.2d 444 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1425a].
5. The Court reviewed 12 pages of Adjuster Notes produced by Defendant.
6. F.S. 627.736 requires that Plaintiffs in PIP cases send a Demand Letter to the Defendants as a condition precedent to initiating litigation.
7. The Adjustor’s Notes and other investigative materials reflect the actions taken by the adjustor in the ordinary course of business which is adjusting claims. The business of insurance companies is to sell insurance policies, adjust claims and make payment if coverage exists.
8. Prior to receipt of a Demand Letter, Adjuster’s Notes and other investigative materials are generated in the ordinary course of business and not prepared in response to an event which foreseeably could be made the basis of a future claim.
9. Therefore, the work product privilege does not apply.
10. The Defendant shall produce all 12 pages of Adjuster Notes to Plaintiff within 45 days.
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