20 Fla. L. Weekly Supp. 822c
Online Reference: FLWSUPP 2008COLEInsurance — Personal injury protection — Discovery — Work product — Adjuster’s notes that are part of ordinary claim process are not protected by work product privilege
PRECISION DIAGNOSTIC OF LAKE WORTH, LLC a/a/o Icilda Cole, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-27225 COCE (55). May 24, 2013. Sharon Zeller, Judge. Counsel: Steven Lander, Fort Lauderdale, for Plaintiff. Rebecca Kay, Fort Lauderdale, for Defendant.
ORDER ON IN CAMERA INSPECTION
THIS CAUSE came before the Court for an in camera inspection of documents and the Court having reviewed the documents and the relevant legal authorities and being sufficiently advised in the premises, finds as follows:
The issue is whether certain computer-generated notes are protected either by the work product privilege or the attorney client privilege.
Defendant, Liberty Mutual Insurance Company, filed their Privilege Log on April 17, 2013 setting forth their objections. At the hearing on Plaintiff’s Motion to Compel Adjuster’s Notes the only issue for the Court was the request to produce 7 pages of notes. The Court ordered that all notes up to the date when Defendant received a demand letter be delivered to chambers for in camera inspection. The Court received 3 pages of notes.
Defendant admits that Defendant issued a policy of insurance which provided PIP coverage for the claimant for medical expenses.
The Court finds that the pages provided are not are protected by the work product privilege and involves nothing more than the initial part of an ordinary claim procedure.
CONCLUSIONS OF LAW
A claim of work product protection from discovery requires that a specific litigation matter can be reasonably anticipated as a result of an occurrence or circumstance, such as an act giving rise to the accrual of a cause of action. It was never meant to apply to ordinary routine, business-as-usual communications and not intended to protect against the general foreseability of being sued in the course of business. Work product protection attaches to materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation. MERE LIKELIHOOD of litigation doesn’t satisfy its requirement. “At a minimum, a claim of work product protection requires that a specific litigation matter can be reasonably anticipated as a result of an occurrence or circumstance — such as an act giving rise to the accrual of a cause of action.” Neighborhood Health Partnership v. Merkle, 8 So.3d 1180, (Fla. 4thDCA 2009) [34 Fla. L. Weekly D766a].
Although, it seems that the work product protection has morphed into a new “Claims File” privilege, various appellate courts have stated that there is an exception to the general rule that an insurer’s claim file constitutes work product and is protected from discovery prior to a determination of coverage. See State Farm Fire Ins. Co. v. Aloni, 101 So.3d 412, (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2737a]. (The other problem is that there is no clear definition of “coverage” in the context of a PIP case.) Just because a defendant may place documents into a claim file and holler privilege — it is up to the court to conduct an in camera inspection to determine if each document properly meets that privilege. Bankers Security Ins. Co v. Symons, 889 So.2d 93 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D2638a].
Reviewing the documents, the pages presented are part of an ordinary claim process. These shall be released to the Plaintiff after ten days of this order.
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