22 Fla. L. Weekly Supp. 46a
Online Reference: FLWSUPP 2111HEREInsurance — Personal injury protection — Discovery — Adjuster’s notes — Error to compel production of adjuster’s notes prepared prior to receipt of demand letter without conducting in camera inspection of notes
PROGRESSIVE AMERICAN INSURANCE COMPANY, Petitioner, vs. ANGELS DIAGNOSTIC GROUP, INC., A/A/O PARIS HERENCIA, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-272 AP. L.T. Case No. 12-13150-SP 25. July 10, 2014. An appeal from the County Court in and for Miami-Dade County, Florida, Judge Gloria Gonzalez-Meyer. Counsel: Douglas H. Stein, Seipp, Flick & Hosley, LLP, Miami, Florida, for Petitioner. Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, Florida, for Respondent.
(Before PRESCOTT, SAMPEDRO-IGLESIA, and SANTOVENIA, JJ.)
(SANTOVENIA, Judge.) Appellant, Progressive American Insurance Company (“Progressive”) seeks review of an order dated June 20, 2013 denying Progressive’s work product objection and compelling production of adjuster’s notes prepared prior to Progressive’s receipt of Appellant, Angels Diagnostic Group, Inc.’s (“Angels”) pre-suit demand letter1. The adjuster’s notes were requested in Angels’ request for production directed to Progressive.
The critical question here on Progressive’s work product objection is at what point does the submission of a claim by an insured turn into an event which foreseeably could result in litigation. See Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2116b] (insurance carrier objecting to discovery on the basis of work-product privilege “maintains the burden to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insurer”); Cotton States Mut. Ins. Co. v. Turtle Reef Associates, Inc., 444 So. 2d 595, 596 (Fla. 4th DCA 1984) (work product privilege attaches only to material prepared by insurer “in contemplation of litigation,” not as part of investigation conducted in “the ordinary course of business”).
The answer is case specific and not always easy to determine. See Airocar, Inc. v. Goldman, 474 So. 2d 269 (Fla. 4th DCA 1985). “In the insurance context, a document may be deemed to have been prepared in anticipation of litigation if it was created after the insured tendered its claim for coverage; if it begins to appear that the insurer might deny coverage or reserve its rights; the insurer denies coverage; if coverage litigation appears imminent; or if coverage litigation commenced.” Kaufman, 885 So. 2d at 910. “[T]he mere general likelihood of litigation in the corporation’s ordinary conduct of business is not enough for a claim of work product protection.” Neighborhood Health P’ship, Inc. v. Peter F. Merkle M.D., P.A., 8 So. 3d 1180, 1184 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D766a]. Rather, “[t]here must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually being sued.” Id.
This Court’s well-reasoned opinion in State Farm Mutual Automobile Insurance Company v. South Miami Health Center, Inc., 18 Fla. L. Weekly Supp. 968a (Fla. 11th Cir. Ct. Aug. 18, 2011) is directly on point with this case as to the facts and issue on appeal. The State Farm court held that “[t]he 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 objections and conducting an in camera inspection”. Id.
In State Farm, as here, the insurer, State Farm, was sued in a civil suit to collect the outstanding balance on a PIP claim. State Farm was served with requests for production seeking its entire claim file, including adjuster notes and emails prepared until the time of receipt of the claimant’s demand letter. State Farm objected to producing the documents pursuant to the work product doctrine. In support of its work product objection, State Farm also filed a privilege log listing the documents for which it sought protection. Instead of producing the documents pursuant to a court order, State Farm petitioned this court for a writ of certiorari, which was granted.
The applicable standard of review on appeal is whether the order compelling production of the adjuster’s notes in question departs from the essential requirements of the law and production of the documents will cause Progressive irreparable harm throughout the remainder of the case. See Ford Motor Co. v. Hall-Edwards, 997 So. 2d 1148, 1149 (Fla. 3d DCA 2009) [33 Fla. L. Weekly D2775a]; CNL Resort Hotel L.P. v. City of Doral, 991 So. 2d 417, 420 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2265a]; American Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206, 1208 (Fla. 4th DCA 2001) [25 Fla. L. Weekly D1542a] (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)).
It is well-settled that “[d]ocuments protected by work product immunity must not be lightly invaded.” Intercontinental Properties, Inc. v. Samy, 685 So. 2d 1035, 1036 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D203a]. “Orders compelling production of matters claimed to be protected by the . . . work product doctrine present the required potential for irreparable harm.” Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021, 1022 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1705a](citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)).
Documents are protected by the work product doctrine when they are prepared “in response to some event which foreseeably could be made the basis of a claim in the future.” Marshall of MA, Inc. v. Minsal, 932 So. 2d 444, 447 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1425a]. “Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Florida Const., Commerce & Indus. Self Insurers Fund, 720 So. 2d 535, 537 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1561c] (quoting Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989)).
In the instant case, the foregoing standard was not applied during the hearing on the motion to compel and the analysis undertaken by the trial court is not consistent with the standard in Florida for determining the applicability of the work product doctrine. The trial court misapplied the law in implicitly ruling, without an inspection of the adjuster’s notes prepared prior to the receipt of the pre-suit demand letter, that those documents were not prepared in anticipation of litigation. While in many cases it may very well be determined that adjuster’s notes prepared before an insurer receives a pre-suit demand letter were prepared as part of a claims adjusting function and not in anticipation of litigation, that is not an automatic determination that can be made by the trial court absent an in camera inspection.
Appellee mistakenly asserts on appeal, with no citation to the record below, that the trial court did conduct an in camera inspection of the documents in question before making its ruling. However, the hearing transcript evidences that the trial court did not review during the hearing any adjuster’s notes identified in Progressive’s privilege log.
Further, the trial court’s ruling as to production of the adjuster’s notes was reduced to writing in an order compelling production of the documents which was entered on June 20, 2013, the same date of the hearing. The June 20, 2013 order unambiguously provides that “Defendant shall produce all adjuster’s notes up to the receipt of Plaintiff’s Demand letter. Defendant shall submit the remaining notes for in-camera inspection”.
The hearing transcript also demonstrates that the trial judge’s decision was based on the trial court’s ruling in another case involving the same issue. As such, the trial court departed from the essential requirements of the law in granting the motion to compel as to the adjuster’s pre-demand letter notes without first individually analyzing the work product objection and conducting an in camera inspection.2 See Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991) (noting that 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). Further, the order compelling production of the adjuster’s notes in question would result in irreparable harm. See Coyne, supra., 715 So.2d at 1022; State Farm, supra., 18 Fla. L. Weekly Supp. 968a.
Accordingly, this Court grants the petition, quashes the June 20, 2013 order to the extent it requires production of the adjuster’s notes generated prior to Progressive’s receipt of the pre-suit demand letter, and remands with instructions for the trial court to conduct proceedings consistent with this opinion, including an in camera review of the documents in question. This court reaches no conclusions about the applicability of the work product doctrine asserted by Progressive as to the documents in question since that determination is reserved for the trial court.
Progressive’s Motion for Attorney’s Fees Pursuant to Proposal for Settlement is hereby granted contingent upon meeting the criteria set forth in Section 768.79(3), Florida Statutes. The court remands with instructions for the trial court to make that determination. (PRESCOTT, J., Concurs. SAMPEDRO-IGLESIA, J., Dissents, with written Opinion.)
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1The production of several other categories of documents is also addressed in the trial court’s June 20, 2013 order. However, Progressive’s petition for writ of certiorari appeals only the court-ordered production of the adjuster’s notes prepared prior to the date of receipt of the pre-suit demand letter.
2The work product doctrine allows a party to withhold “materials prepared in anticipation of litigation by or for a party or its representative . . . unless the party seeking the discovery has need of the material and is unable to obtain the substantial equivalent without undue hardship.” S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994); Fla. R. Civ. P. 1.280(b)(3). This “work product privilege” is premised on the rationale that “one party is not entitled to prepare his case through the investigation work product of his adversary where the same or similar information is available through ordinary investigation techniques and discovery procedures.” Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980). Given the trial court’s implicit ruling that the adjuster’s notes in question were not work product, the record evidences that the trial court did not address at the hearing whether Angels could make the requisite showing of necessity of the materials and inability to obtain the substantial equivalent without undue hardship. Thus, no such showing was made below regarding the adjuster’s notes.
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(SAMPEDRO-IGLESIA, J., dissenting.) I dissent regarding the majority’s grant of certiorari from an order compelling production of certain portions of Progressive’s claims file, and write to establish some guiding precedent on the issue of the so-called “claims file privilege.”
Progressive seeks certiorari review of the trial court’s order compelling it to produce certain documents from its claims file, including certain adjuster notes, that the trial court determined were not work product after properly conducting an in camera inspection. The trial court did not compel production of the entire claims file but, after commendably performing the required in camera inspection, determined that certain documents in the claims file did not constitute work product because they were not prepared in anticipation of litigation — which is the correct legal standard for determining whether the work product privilege attaches. In particular, in this case, the trial court found that adjuster notes up to the point of Progressive receiving a statutory pre-suit Demand Letter were not prepared in anticipation of litigation. The majority opinion makes the assumption that the trial court did not review the documents, and did not conduct an in camera inspection; however, a close look at the transcripts indicates that who made the assertion of documents prior to the demand letter or after the demand letter was the trial attorney, not the trial court. Thus, in my view, there is no competent evidence in the file to indicate that an in camera inspection was not conducted.
I do not believe that an insured’s mere claim for PIP benefits give rise to reasonably foreseeable or imminent litigation. See Cotton States Mut. Ins. Co. v. Turtle Reef Assoc., Inc., 444 So.2d 595, 596 (Fla. 3d DCA 1984) (work product privilege attaches to statements made by party’s insurer only if these were prepared “in contemplation of litigation”).
I agree with and would adopt the well written order, authored by The Honorable Michael Hanzman, in the case styled Udelson v. Nationwide Ins. Co., Case No. 12-25140 [20 Fla. L. Weekly Supp. 1176a], cert. denied, Nationwide Ins. Co. v. Udelson, 116 So.3d 1273 (Fla. 3d DCA 2013).
In Udelson, Judge Hanzman compelled production of certain documents contained in Nationwide’s claims file, which Nationwide identified in its privilege log as work product. After conducting an in camera inspection, Judge Hanzman found that the documents were not prepared in anticipation of litigation. Rather, he determined that the materials “were generated as part of Nationwide’s adjustment of their claim; an activity that is required by the terms of its policy and performed in the ordinary course of an insurance carrier’s business.
Judge Hanzman’s order highlights the myth of the so-called “claims file” privilege. He “disagreed” with Nationwide’s contention “that materials are privileged — and hence beyond the reach of its adversary — simply because they reside in its ‘claims file’.”
As Judge Hanzman recognized, “[t]he critical question then is at which point does the submission of a ‘claim’ by an insured turn into an ‘event’ which ‘foreseeably’ could result in litigation. The answer is case specific and not always “easy to determine.” Udelson, quoting Airocar, Inc. v. Goldman, 474 So.2d 269 (Fla. 4th DCA 1985).
Moreover, certiorari is properly denied where there has been no departure from the essential requirements of law and the law is well settled that, where a moving party has demonstrated need and undue hardship to overcome the work product privilege, information is discoverable even if otherwise privileged. See Fla.R.Civ.P. 1.280(4). Here, the trial court found that the medical provider demonstrated such need and undue hardship and, therefore, the privilege (if any) was overcome.
Our county court judges are more than capable to ascertain upon inspection whether documents have been prepared in anticipation of litigation. We should not disturb their findings.
The trial court did not depart from well-established principles of law in compelling production of certain documents after conducting an in camera inspection and determining that certain documents were not prepared in anticipation of litigation.
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