22 Fla. L. Weekly Supp. 878a
Online Reference: FLWSUPP 2208INFAInsurance — Personal injury protection — Discovery — Documents — Work-product privilege — Claims file — Trial court departed from essential requirements of law by requiring insurer to produce documents from claims file where coverage and damages were at issue
MERCURY INSURANCE COMPANY, Petitioner, v. CITYSTAR REHAB CENTER, a/a/o Jose Infante, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-013 AP. L.T. Case No. 13-3636 SP 25. March 26, 2015. On Petition for Writ of Certiorari from the County Court for Miami-Dade County. Don S. Cohn, Judge. Counsel: Diane H. Tutt, for Petitioner. Kenneth B. Schurr, for Respondent.
(Before GENDEN, FIRTEL1 AND FREEMAN, JJ).
(FREEMAN, Judge.) In this PIP suit, Mercury Insurance Company of Florida (Mercury) filed a petition for writ of certiorari seeking to overturn a trial court order that required it to produce various portions of its claims file documents listed in its Privilege Log. The issue presented by this petition is whether the documents required to be produced in the December 16, 2013 Order are protected from discovery under the work-product privilege.2 Since we have determined that the Order departs from the essential requirements of the law causing irreparable harm that cannot be remedied on appeal, we hereby grant the petition and quash the Order on review.
Citystar Rehabilitation Center (Citystar), the respondent, propounded discovery requests to Mercury.3 Mercury produced certain documents, but objected to the production of other documents based on work-product privilege. Mercury filed a corresponding Privilege Log. Citystar filed a motion for an in camera inspection of the documents set forth in Mercury’s Privilege Log. The trial court entered an agreed order granting its motion.
After an in camera inspection, the trial court entered an order on December 16, 2013 requiring various documents in Mercury’s Privilege Log to be produced. These documents included portions of adjuster’s notes, presuit demand worksheet, automobile 1st report forms, new loss checklist, photographs of vehicle, internal Mercury correspondence, vehicle registration search results, claim search for claimant, invoices for interpreting services, and tracking information and delivery confirmation of correspondence sent to claimant, Citystar, Florida Mammogram, and Roig Ortho & Rehab Center.
“[G]enerally, an insurer’s claim and litigation files constitute work product and are protected from production,” unless the “insurance company is sued for bad faith.” Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121, 1123 (Fla. 2005) [30 Fla. L. Weekly S219c]. This nearly categorical rule protecting the claim file from discovery applies when issues of coverage, liability and damages are contested. See State Farm Mut. Auto. Ins. Co. v. O’Hearn , 975 So. 2d 633, 637 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D708a]; State Farm Mut. Auto. Ins. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2590a] (“until the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims filed. . .”).
However, notwithstanding the fact that coverage is at issue, a party is entitled to have the trial court conduct an in camera inspection of the withheld documents to ensure that each document properly meets the specific criteria of the work-product privilege. See State Farm Florida Ins. Co. v. Aloni, 101 So. 3d 412, 414 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2737a] citing to Superior Ins. Co. v. Holden 642 So 2d. 1139, 1140 (Fla. 4th DCA 1994). Toward this end, Third District Court of Appeal has recently held that “case law prohibiting the disclosure of ‘claims file’ material . . . clearly encompasses items such as notes in the claims file, property loss information, and property loss notice forms, which are all specific to the handling of a claim.” Castle Key Ins. Co. v. Benitez, 124 So. 3d 379, 381 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2226a]; See also Nationwide Ins. Co. of Florida v. Demmo, 57 So. 3d 982, 984 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D707a] (claim notes/activity log, property loss notice information and property loss notice forms were not subject to disclosure.) The Castle court further indicated that “written communications regarding the claim” and “documents relied upon for the denial of the claim” would not be subject to disclosure when coverage was at issue. Castle Key Ins. Co., 124 So. 3d at 381; See also State Farm Florida Ins. Co. v. Aloni, 101 So. 3d 412 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2737a] (activity log notes, emails, and photographs in insurer’s claim file were not subject to disclosure prior to a determination of coverage.)
In another case, the Third District Court of Appeal held that a “defendant’s surveillance photographs, witness statements and repair estimates were protected by the work product privilege.” State Farm Fire and Casualty Co. v. Valido, 662 So. 2d 1012 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2514e]. Moreover, in State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D330a], the Second District Court of Appeal held that claims files, investigative reports and adjuster notes are “either irrelevant to the first party dispute that this case presents or are privileged work product.”
A review of the documents at issue in this case show that the first seventy two (72) pages appear to be “notes in the claims file,” along with the handwritten presuit demand worksheet. Further, the documents consist of property loss information and property loss notice forms, such as the automobile 1st report forms, new loss checklist, and photographs of the vehicle. As case law has shown, all such documents appear to be protected from disclosure where coverage or damages is at issue.
The documents also contain invoices for interpreter services for the EUO of the claimant (a no show), a certificate of non-appearance for claimant’s EUO, and tracking information and delivery confirmation for correspondence sent to claimant, Citystar, Florida Mammogram, and Roig Ortho & Rehab Center. Additionally, shipment request forms and return of service documents with invoices also appear in these documents. Although there appears to be no cases directly addressing these type of documents and the work product privilege, these items appear to fall within the category of materials that are either irrelevant to the first party dispute or are privileged work product, and therefore, not subject to discovery.4
In light of the foregoing, we grant the petition for writ of certiorari and quash the December 16, 2013 Order requiring that the documents at issue be produced. We remand to the trial court for proceedings consistent with this opinion.
The Respondent’s motion for appellate attorney’s fees is hereby denied. (GENDEN and FIRTEL, JJ., Concur).
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1We wish to note that Judge Firtel participated in this case but retired prior to the rendition of the opinion.
2We reject without further comment Citystar’s remaining arguments, including its argument that Mercury failed to present a sufficient record of the proceedings below, and that Mercury admitted coverage was not an issue.
3Citystar Rehabilitation Center claims PIP benefits as an assignee of Jose Infante, who was allegedly injured while a passenger in a vehicle driven by a Mercury insured.
4A daily scan summary dated January 15, 2014 has been included in the documents under review. This document could not have been considered by the trial court in its Order dated December 16, 2013. Therefore, this document was not considered for review by this appellate court.
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