21 Fla. L. Weekly Supp. 358b
Online Reference: FLWSUPP 2104KERSInsurance — Personal injury protection — Discovery — Documents — Work product — Adjuster’s notes in claims file that were revealed on in camera inspection to be relevant and to be part of ordinary claims process, not work product, are not privileged — Question certified: When an insurer in a PIP case disputes coverage or extent of damages, but an in camera inspection of the insurer’s adjuster notes in a “claims file” reveals non-work product (which are created as part of the ordinary claims process) that are potentially relevant on the issue of coverage and extent of damages, may the court require production of these non-work product adjuster notes as an exception to the general rule that an insurer’s “claims file” is not discoverable until the coverage issue has been resolved?
PAN AM DIAGNOSTIC SERVICES, INC. (a/a/o Demelus Kersaint), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-6169 COCE (53). November 26, 2013. Robert W. Lee, Judge. Counsel: Steven Lander, Fort Lauderdale, for Plaintiff. Jessica N. Chapman, Deerfield Beach, for Defendant.ORDER ON IN CAMERA INSPECTION, andCERTIFICATION TO THE FOURTH DISTRICTCOURT OF APPEAL AS A QUESTION AFFECTINGTHE UNIFORM ADMINSTRATION OF JUSTICE,PURSUANT TO FLA. STAT. §34.017(1)(b),RULES 9.030(b)(4) and 9.160, FLA. R. APP. P.1
THIS CAUSE came before the Court for in camera inspection of documents referred to in the order on August 26, 2013, and the Court’s having reviewed the documents, and the relevant legal authorities, and the Court’s being sufficiently advised in the premises, the Court finds as follows:
The question in this case is simple: whether certain computer-generated notes and other related documents in the Defendant’s file are protected by the “work product” privilege. As this is the only objection set forth by the Defendant in its Privilege Log, the Court limits its analysis strictly to this claim of privilege.2Background and Findings of Fact
On June 11, 2013, the Plaintiff filed its Motion to Overrule Defendant’s Objections and Compel Responses to Plaintiff’s Requests for Production and Interrogatories. The Plaintiff’s Motion and Defendant’s objections were set for hearing for August 26, 2013. The Defendant objected to producing “Claim File/Adjuster’s Notes” (pages 1-86); “Cover Information Report” (pages 87-94); “Fire Alpha Search/ISO Search Report” (pages 95-105); “Correspondence” from Exam Works (pages 106-114); “Correspondence” from State Farm (pages 115-117); and “Claimant Property Damage” from GEICO (pages 118-215). (Fortunately for the Court, the documents were Bates-stamped by the Defendant, and any reference to the page numbers in this case refers to the Bates-stamp page number.) Prior to the hearing, the Defendant filed its Privilege Log. The Court ordered that these documents be delivered to chambers for in camera inspection. The Defendant timely complied.
As a result, for purposes of the in camera inspection, the Court limits its review to only the Defendant’s claim that items responsive to these requests are protected by the work product privilege. The Court’s disposition is as follows:
A review of the pleadings in this case reveals that the Defendant is disputing that the treatment rendered by the Plaintiff is reasonable, related and medical necessary. More specifically, the Defendant has filed an affirmative defense alleging that payment for the medical service at issue in this case was denied as the result of an independent medical examination ordered by State Farm which took place on September 13, 2012. At a previous hearing, defense counsel acknowledged that searches for prior claims are conducted by State Farm for “almost every claim,” not merely those for which litigation is anticipated. The automobile accident in this case occurred on June 27, 2012. The single service at issue in this case was rendered on July 26, 2012. A review of the documents provided by Defendant reveals that this case went beyond the ordinary claims process, and the parties should have reasonably anticipated litigation, as of July 12, 2012.
Based on the above conclusion, the Court finds as follows:
| Category | Privileged | Not Privileged |
| Claim File/Adjuster Notes | 3, 6, 8, 11, 15, 17-1820-22, 24-38 (top),39 (bottom)-82 (top) | 1-2, 4-5, 7, 9-10, 12-14,16, 19, 23, 38 (bottom),39 (top), 82 (bottom)-86 |
| Cover[age] Information | 87-94 | |
| Search Reports | 95-105 | |
| Correspondence/Exam Works | 106-114 | |
| Correspondence/State Farm | 115-117 | |
| Claimant Property Damage | 118-215 |
The Court finds that the 31 pages determined to be “Not Privileged” either cover a period of time involving nothing more than the initial part of the ordinary claims process, before the Defendant could reasonably have anticipated litigation, or are clearly relevant to an issue in the case. Moreover, these non-privileged items are routinely created by State Farm for any PIP claim, whether litigation is anticipated or not. As noted, based on a review of the produced items, the Court finds that the Defendant could have anticipated litigation as early as July 12, 2012. These non-privileged pages are reasonably calculated to lead to admissible evidence on the issues specifically denied by the Defendant or raised by the Defendant’s affirmative defense.Conclusions of Law
The law pertaining to civil discovery is based on the general proposition that one party can ask the opposing party for almost anything “relevant to the subject matter of the pending action,” or even further, anything “reasonably calculated to lead to the discovery of admissible evidence.” Rule 1.280(b)(1). The rule is subject to one broad caveat: even if potentially relevant, the materials are protected from disclosure if privileged. Id. One of these privileges is the work product privilege. As noted by Trawick, this doctrine was first pronounced in Florida in 1949 in the case of Atlantic Coast Line Railroad Co. v. Allen,3 following the decision of the United States Supreme Court in 1947 in Hickman v. Taylor.4 However, Trawick further notes that Florida courts have “extended even more protection to work product.” Trawick’s Fla. Prac. & Proc. §16:4 (2012).
To be “work product,” the materials “must be prepared in anticipation of litigation, but the litigation need not be pending at the time.” Id. If a party asserts a work product privilege, the court simply analyzes whether these materials were “prepared in anticipation of litigation.”5 Of course, if the materials are not reasonably calculated to lead to the discovery of admissible evidence, then they are also protected from disclosure regardless of their work product nature.
This analysis seems to be fairly straightforward for a trial court — with at least one clear exception: claims files in insurance cases. This area has produced more than 70 reported appellate decisions which appear to have created, in this Court’s respectful view, what one of this judge’s law professors may well have called a “mishmosh of confusion.”6
The Florida Fourth District Court of Appeal has clearly addressed this precise issue in State Farm Florida Insurance Company v. Aloni.7 In this recent insurance case involving coverage (as in the instant case), the appellate court reiterated the general rule: “[g]enerally, an insurer’s claim file constitutes work product and is protected from discovery prior to a determination of coverage.” 101 So.3d at 414. In Aloni, the plaintiff sought State Farm’s “complete claims file.” Id. at 413. The trial court conducted an in camera inspection and ordered State Farm to produce certain items from the file. Id. State Farm challenged production on grounds of work product privilege and relevancy. Id. at 413. The appellate court concluded that these documents constituted work product and accordingly quashed the trial court order. However, the appellate court noted that notwithstanding the fact that coverage was still at issue, a party was entitled to have the “trial court conduct an in camera inspection of the withheld documents to ensure that each properly meets the specific criteria of the work product and/or attorney-client privilege.” Id. at 414 (emphasis added). If they are subject to these privileges, then the party can still attempt to obtain them by showing need for the materials and undue hardship in obtaining the substantial equivalent. Id.
Similar to Aloni, the Fourth District Court of Appeal issued a ruling several years earlier that appeared to clearly set forth which documents in an insurer’s claims file can be discovered in cases in which the issue of coverage is still unresolved. In Superior Insurance Company v. Holden,8 the appellate court stated:
In the present case, the issue of coverage was still unresolved at the time of the hearing on Superior’s objection to the Holdens’ request for production. Therefore, the trial court departed from the essential requirements of law when it overruled Superior’s objection to the requested discovery. Of course, the Holdens may request that the trial court conduct an in camera inspection of the withheld documents to ensure that each properly meets the specific criteria of the work product and/or attorney-client privilege. The Holdens may also attempt to make the required showing of a good cause exception to the work product privilege under Rule 1.280(b)(3).
642 So.2d at 1140 (emphasis added). The holding of the Fourth District Court of Appeal is buttressed by a later coverage case in which the same appellate court required a trial court to determine whether documents in an insurer’s claim file actually constitute work product, Lloyd’s Underwriters at London v. El-Ad Villagio Condominium Association, Inc.9 Importantly, Aloni, Holden, and Lloyd’s Underwriters are all coverage cases.
In 2002, the Fourth District Court of Appeal stated in Florida Farm Bureau General Insurance Company v. Copertino10 that “ordinarily” a claims file constitutes an insurer’s work product, and as such is not subject to discovery in a coverage case. The appellate court noted that the ruling might be different in a bad faith case, when a claimant might be able to reach otherwise protected work product. 810 So.2d at 1079. Clearly, the appellate court recognized the significance of the distinction between a coverage claim and a bad faith claim in this context: whether work product could be reached.11 Significantly, however, by use of the word “ordinarily,” the appellate court left open the door to a finding that sometimes individual items in a claims file might not constitute work product, as the same appellate court previously recognized in Holden and Lloyd’s at London, and then later in Aloni.
These decisions of the Fourth District Court of Appeal are supported further by a decision authored in 2004 by Judge Griffin of the Fifth District Court of Appeal, Bankers Security Insurance Company v. Symons.12 In a case involving a coverage dispute and a request for production of an insurer’s claim file, the appellate court recognized that the “claims file” was not a safe harbor to shelter otherwise “non-work product” documents:
Even if the court agrees that a “claims file” is work product, it is not necessarily true that every document in a claim file is work product. Putting a document in a claim file doesn’t make it immune; it is only immune if it is work product.
889 So.2d at 96 (emphasis in original).13 Judge Griffin’s opinion accordingly should make clear that any shield a claims file has from production is based on the work product privilege, and not a new freestanding “claims file” privilege.14
Thereafter, in 2005, the Florida Supreme Court considered the appropriate standard to require production of an insurer’s claims file in a coverage case. In Allstate Indemnity Company v. Ruiz,15 the court stated that “[g]enerally, an insurer’s claim and litigation files constitute work product and are protected from production. The analysis differs however when an insurance company is sued for bad faith.” Id. at 1123 (emphasis added). The use of the word “generally” — meaning “for the most part” — clearly suggests that the rule is not an absolute one.16 As with Copertino, discussed above, the door has been left open to find that some of the materials in a “claims file” may in fact not be work product.17
Notwithstanding this seemingly clear statement of the law, this Court has been faced with a wave of motions and objections challenging the production of items in an insurer’s claims file. For the most part, the insurer argues that the entire file, or all adjuster notes, are protected from discovery, in toto, until coverage is determined, regardless of the work product nature of anything in the file. As discussed hereinafter, a careful review of the reported decisions clearly intimates that an item in an insurer’s claims file which is neither work product nor otherwise privileged is subject to production even when coverage is still disputed.18 The distinction between a bad faith and a coverage dispute appears clearly to be the issue of whether otherwise protected matters may be produced.19 Somehow, this has morphed into a present-day hard-pressed argument that nothing in a claims file must be produced in a coverage case, end of analysis, and regardless of what documents the insurer has placed in the claims file.
This Court is becoming increasingly concerned in handling in camera inspections of this nature that insurers are routinely placing otherwise clearly discoverable items in a “claims file” and then asserting that because the item is now in the “claims file,” it does not have to be produced even if completely relevant to the issues before the Court. Indeed, in this case, after a review of the documents, it appears to the Court that many pages would not survive a claim of work-product because “[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).
It seems to this Court that those urging an absolute bar to production of anything in an insurer’s claims file are conflating two discovery issues: relevancy20 and work product. The Court surmises that there also may be confusion as to what actually is contained in an insurer’s “claims file.” It makes no sense to this Court to say that a document in a claims file that is not work product, but is otherwise reasonably calculated to lead to the discovery of admissible evidence, should be protected by some type of penumbral privilege.21 Indeed, often documents in a claims file are relevant to the issue of coverage.22 Moreover, it would be fundamentally unfair to permit an insurer to raise affirmative defenses in case, and then turn around and allow them to shield otherwise non-privileged documents related to these defenses from discovery which would be otherwise discoverable under other routine types of litigation.
Attorneys sometimes argue that an entire claims file is really protected by a simple relevancy analysis, i.e., the matters therein are not relevant until coverage is determined. In a PIP case, however, this is simply not the case. The appropriate standard for discovery is whether the information may to lead to admissible evidence, not whether it is relevant in itself. See Board of Trustees v. American Educational Enterprises, LLC, 99 So.3d 450, 457 (Fla. 2012) [37 Fla. L. Weekly S589a]. In the instant case, the Court cannot say that these non-privileged pages hold no possibility of leading to information that may assist the Plaintiff in proving its prima facie case, or responding the Defendant’s pled defenses.
Moreover, if there is an absolute bar to production of anything in a claims file until coverage is determined, this Court is unsure why judges are required to conduct in camera inspections when a “claims file” privilege is asserted if it does not matter what is in the file. Indeed, when a privilege is asserted, the trial court must usually conduct an in camera review to deduce if they are in fact privileged.23
The Court recognizes that there are a few cases, from other districts, that strongly suggest the existence of a “claims file privilege.”24 In the Court’s view, however, a careful review of the case law reveals that items in a claims file should be subject to production, even if coverage has not been determined, when the items are not work product and they otherwise may lead to the discovery of admissible evidence. In light of case law development in this area, however, confusion is understandable. Nevertheless, because the Defendant in this case has limited its objections solely to work product and attorney/client privilege, this Court need not consider the potential application of any separate “claims file” privilege.
The bottom line, however, for this Court is that decisions of the Fourth District, as analyzed above, clearly permit the production of the pages referenced in this Order. As a result, this Court follows the decisions of the Fourth District. Accordingly, it is hereby
ORDERED that all the produced documents are protected work product, except for the pages referenced above. These pages cover nothing more than the initial part of the ordinary claims process and are clearly relevant to the coverage issues and affirmative defenses raised by Defendant in this case. The Court intends to release these non-privileged pages to the Plaintiff after the next ten (10) days. The remaining pages shall remain under seal. Moreover, the Defendant is placed on notice that it may be barred from using any of the privileged documents to support its position in this case, or may be faced with the possibility that it has waived any privilege if it attempts to do so.
However, because of the confusion between the “work product” privilege and its relation to the apparently nascent “claims file” privilege, as well as conflicting rulings coming from the trial courts and circuit appellate courts,25 the Court certifies the following question to the Florida Fourth District Court of Appeal as a question affecting the uniform administration of justice:
When an insurer in a PIP case disputes coverage or extent of damages, but an in camera inspection of the insurer’s adjuster notes in a “claims file” reveals non-work product (which are created as part of the ordinary claims process) that are potentially relevant on the issue of coverage and extent of damages, may the court require production of these non-work product adjuster notes as an exception to the general rule that an insurer’s “claims file” is not discoverable until the coverage issue has been resolved?
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1Pursuant to Rule 9.160(b), any appeal of the Court’s decision in this matter must be filed in the Fourth District Court of Appeal, and not the Circuit Court.
2Although the Defendant claimed attorney-client privilege as to 2 pages of “Suit Assignment Correspondence,” those two pages were not produced to the Court.
340 So.2d 115 (Fla. 1949).
4329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
5National Union Fire Ins. Co. v. Florida Constr. Fund, 720 So.2d 535, 537 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1561c].
6With apologies to the late UF law professor Gerald Bennett.
7101 So.3d 412 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2737a] (on rehearing).
8642 So.2d 1139 (Fla. 4th DCA 1994). See also Federated Nat’l Ins. Co. v. Fortin, 121 So.3d 606, 607 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1745b] (recognizing continuing vitality of this portion of the Holden holding).
9976 So.2d 28 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D283b].
10810 So.2d 1076 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D652a].
11Indeed, engaging in this Court’s obligation to “reason why,” the Court believes this to be the only logical reason why there should be a distinction between “bad faith” and “coverage” cases. See Ginsburg, The Obligation to Reason Why, 37 Fla. L. Rev. 205 (1985).
12889 So.2d 93 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D2638a].
13Accord Allstate Ins. Co. v. Cambron, 936 So.2d 1210 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2326a] (a claims file may contain items not protected by the work product privilege and therefore subject to production).
14The need to characterize this type of immunity as a “claims file privilege” appears to arise from the principle the violation of a “privilege” leads to “irreparable harm.” See American Home Assur. Co. v. Vreeland, 973 So.2d 668, 671 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D469a]; Cambron, 936 So.2d at 1212. If there is no “privilege,” there can arguably be no irreparable harm if disclosure is ordered.
15899 So.2d 1121 (Fla. 2005) [30 Fla. L. Weekly S219c].
16See American Heritage Dict. of the English Language 549 (1976). See also Zirkelbach Const., inc. v. Rajan, 93 So.3d 1124, 1127 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1793a] (also uses word “generally” when referring to rule); Copertino, 810 So.2d at 1078 (using the word “ordinarily” when discussing the “general rule” in a coverage case).
17See also Allstate Property & Cas. Ins. Co. v. Archer, 45 So.3d 924, 927 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2250b] (judge in a coverage case “recognize[s] that much of the claim file may be work product,” clearly suggesting that some may not be) (Altenbernd, J., concurring); Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 n.2 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D559b] (finding that even though an insurer’s claims file is “generally” not discoverable in a coverage, documents in the claims file may be discoverable to the extent “reasonably expected or intended to be used at trial”).
18In this case, even though State Farm has responded to Plaintiff’s request for production by asserting that it has “no coverage defense,” State Farm’s challenge to the amount to be paid appears to trigger a “coverage” issue under appellate case law.
19See Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1069 (Fla. 2011) [36 Fla. L. Weekly S97a] (Pariente, J., concurring) (discusses “critical role that discovery of the claims file played in bad faith claims”); Ruiz, 899 So.2d at 1128 (Florida Supreme Court discusses why work product protection needs to be pierced in a bad faith case); State Farm Florida Ins. Co. v. Puig, 62 So.3d 23, 25 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D608c] (appellate court focuses on which work product can be reached in a bad faith case); Kmart Corp. v. Sundmacher, 997 So.2d 1158, (Fla. 3d DCA 2006) [33 Fla. L. Weekly D2760a] (issue is whether work product can be reached in a bad faith case); Liberty Mut. Ins. Co. v. Bennett, 939 So.2d 1113, 1114 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2495a] (issue is whether otherwise privileged information may be reached in a bad faith case); XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578, 584 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D1131b] (same); GEICO General Ins. Co. v. Hoy, 927 So.2d 122, 124 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1090a] (appellate court ties claims file disclosure to a coverage issue vs. bad faith analysis).
20See United Property & Cas. Ins. Co. v. Feinstein, 989 So.2d 763 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D2204b] (arguing that a claims file is shielded from production either under a work product or relevancy theory); State Farm Fire & Cas. Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2514e] (the “claims files [. . .] were irrelevant to the first party dispute involved in this case”) (emphasis added); State Farm Florida Ins. Co. v. Gallmon, 835 So.2d 389, 390 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D330a] (claims files are either “irrelevant to the first-party dispute that this case presents or are privileged work product”). These decisions do not suggest what might happen if individual documents in the claims file were sought.
21Indeed, any “claims file” privilege must be rooted in a statutory or constitutional privilege, otherwise it would fly in the face of the Legislature’s directive that privileges against disclosure of information must be created only by statute or under the Constitution. Fla. Stat. §90.501(3).
22Indeed, appellate courts frequently give little indication of the contents of a claim file. But see Hoy, 927 So.2d at 124 (using “original claim file” and “accident investigation file” to refer to the same thing when clearly a claims file contains more than mere information pertaining to the accident investigation).
23Lloyd’s Underwriters, 976 So.2d at 29; Allstate Indemnity Co. v. Oser, 893 So.2d 675, 677 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D478b]; Holden, 642 So.2d at 1140; Allstate Ins. Co. v. Walker, 583 So.2d 356, 357 (Fla. 4th DCA 1991). See also United Services Auto. Ass’n v. Crews, 614 So.2d 1213, 1214 (Fla. 4th DCA 1993) (only way to determine attorney-client protected documents in an insurer’s claims file is to conduct an in camera inspection).
24See Nationwide Insurance Company of Florida v. Demmo, 57 So.3d 982, 984 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D707a]; American Bankers Insurance Company of Florida v. Wheeler, 711 So.2d 1347, 1348 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1449b]. Based on this Court’s analysis in this Order, the Court concludes that the Demmo and Wheeler decisions are not good law in the Fourth District on this issue.
25For a general discussion of the confusion in this area, see Udelson v. Nationwide Ins. Co. of Fla., Order Granting Plaintiff’s Motion to Compel, Case No. 12-25140 CA 20 (Fla. 11th Cir. Ct. Apr. 20, 2013) [20 Fla. L. Weekly Supp. 1176a]; Cunningham & Fischer, Picking Cotton: Ordinary Business Records Doctrine as Applied to Insurer’s Privilege Claims, Fla. B. J., May 2013, at 13-23.
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