20 Fla. L. Weekly Supp. 1146a
Online Reference: FLWSUPP 2012FORTInsurance — Discovery — Documents — Work product privilege — Trial court departed from essential requirements of law by ordering production of insurer’s claims file without first reviewing privilege log, individually analyzing work product objections and conducting in camera inspection
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FORT LAUDERDALE MEDICAL CENTER, INC., Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 12-028502CACE. L.T. Case No. 11-023005COCE(50). July 31, 2013. Petition for Writ of Certiorari from the County Court for the Seventeenth Judicial Circuit, Broward County, Peter B. Skolnik, Judge. Counsel: Spencer M. Rose, Law Office of Maria Corvaia-O’Donnel, P.A., Pompano Beach, for Petitioner. Steven M. Goldsmith, Steven M. Goldsmith, P.A., Boca Raton, for Respondent.
(Before STREITFELD, GATES and PHILLIPS, JJ.)
(PHILLIPS, Judge.)
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the court sitting in its appellate capacity, upon the Petitioner’s (“State Farm”) “Petition for Writ of Certiorari of Petitioner State Farm State Farm Mutual Automobile Insurance Company Pursuant to Florida Rule of Appellate Procedure 9.100(f),” filed on October 9, 2012. After having considered the petition, the responses, the record on appeal, applicable case law, and being otherwise fully advised in the premises, this Court finds as follows:
State Farm petitions this Court to quash the trial court’s September 11, 2012 order claiming that the trial court departed from the essential requirements of the law and violated State Farm’s right to due process by ordering production of its Claim File Documents. Further, State Farm states that it was irreparably harmed by the trial court’s decision.
Fort Lauderdale Medical Center (“Clinic”) argues that State Farm did not file a privilege log that satisfies the requirements of Rule 1.280(b)(5) and therefore any applicable privilege from discovery is waived.
On April 4, 2012 State Farm filed its Response to the Clinic’s Request for Production, which, inter alia, requested portions of its claim file. State Farm filed its responses, which included objections that claimed various privileges. It also filed a separate privilege log.
The Clinic filed its Motion to Overrule Privilege Objections Deem Privilege Waived on April 23, 2012. An Agreed Order was entered on June 18, 2012, which denied the motion and ordered State Farm to “provide better detail as to work product.” State Farm filed its Amended Privilege Log on June 25, 2012.
June 28, 2012, the Clinic again filed a Motion to Deem Privilege Objections Waived as to Defendant’s Amended Privilege Log. After a hearing on September 11, 2012 the trial court entered a Production Order requiring State Farm to produce various documents that it had claimed as privileged without first ordering an in camera inspection. State Farm claims that it requested an in camera inspection; however, as the Clinic points out, there is no transcript of the hearing and therefore no record evidence that State Farm moved the trial court for an in camera inspection.
Under Florida law, waiver of the attorney/client and work-product privileges is not favored. TIG Ins. Corp. of America v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2493a]. In the seminal case of Ruiz, the Florida Supreme Court said that claim files prepared by insurance companies are generally regarded as work product and are protected from discovery, except in cases where there is a showing of bad faith. Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005) [30 Fla. L. Weekly S219c]. Further, 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. Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 358 (Fla. 4th DCA 1991).
The standard for review for a Petition for Writ of Certiorari is limited to the determination of: (1) whether procedural due process was accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the findings and judgment are supported by competent substantial evidence. Campbell v. Vetter, 392 So. 2d 6 (Fla. 4th DCA 1980); Vichich v. DHSMV, 799 So. 2d 1069 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D2290a]. If the Court determines that any one of the three requirements was not met, the Court can only quash the order below but not enter an order to the contrary. See Nat’l Adver. Co. v. Broward Cnty., 491 So. 2d 1262 (Fla. 4th DCA 1986) (“A court’s certiorari review power does not extend to directing that any particular action be taken, but is limited to denying the writ of certiorari or quashing the order reviewed.”).
After careful review of the record, it would appear that in the instant case the essential requirements of the law were not observed, and that State Farm’s right to due process was subsequently affected. This Court finds 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 objects, and conducting an in camera inspection.
Further, 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 (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 made a part of the trial court’s order.
Accordingly, for the above-stated reasons and after due consideration, it is ORDERED AND ADJUDGED that:
1. the Petition for Writ of Certiorari is GRANTED, Accordingly, the trial court’s September 11, 2012 order is QUASHED, and this cause is REMANDED for a hearing de novo consistent with this order;
2. the Clinic’s motion for attorney fees is DENIED; and
3. State Farm’s Motion for attorney fees is conditionally GRANTED and REMANDED to the trial court for consideration and assessment upon State Farm obtaining a final judgement in its favor.
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