22 Fla. L. Weekly Supp. 518b
Online Reference: FLWSUPP 2205STATInsurance — Personal injury protection — Discovery — Adjuster notes — Error to order that adjuster notes be produced prior to resolution of coverage issue
STATE FARM MUTUAL AUTO INS., CO., Appellant/Petitioner, vs. COMPLETE CARE REHABILITATION, INC., Appellee/Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-065 AP. L.T. Case No. 12-739 SP 25. November 24, 2014. On Appeal from the County Court for Miami-Dade County, Patricia Marino-Pedraza, Judge. Counsel: Scott A. Cole and Daniel M. Schwarz, Cole, Scott & Kissane, P.A., for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellee.
(Before PRESCOTT, FIGAROLA and SANTOVENIA, JJ.)
(SANTOVENIA, Judge.) Before this court is the issue of whether the trial court correctly ordered that State Farm’s adjuster’s notes be produced through discovery in a breach of contract action for PIP benefits notwithstanding State Farm’s claim of privilege.
The trial court is to be commended for conducting an in camera inspection of the adjuster’s notes at issue in this appeal before ordering that they be produced. However, on the basis of Castle Key Ins. Co. v. Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2226a], we are compelled to reverse1.
In Castle Key, supra., the Third District held that claims file material was not discoverable prior to the resolution of whether coverage existed, stating that “because the trial court order at issue directed the production of Castle Key’s ‘claims file’ when the issue of coverage is still in dispute, the order departs from the essential requirements of the law.” 124 So. 3d at 380. In so holding, the court cited Nationwide Insurance Co. of Florida v. Demmo, 57So. 3d 982, 984 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D707a] for the proposition that “[i]n considering objections to discovery requests for claims file materials, the “determinative issue” is “what type of action” the insured has brought. Id. at 380.
Further, the Castle Key court made clear that “[t]he case law prohibiting the disclosure of “claims file” material. . .clearly encompasses items such as notes in the claims file. . .”. Id. at FN1.
In Demmo, supra., the court stated:
It appears . . . that the trial court focused on the question of what is and what is not work product with regard to the documents sought. But that is not the determinative issue. Rather, the issue turns on what type of action Demmo has brought. Here she is not pursuing a bad faith claim, but rather seeks relief for breach of contract. “A trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved.”
57 So. 3d at 984 (emphasis in original).
The statement of claim in the present case alleges a breach of policy action with no allegations of bad faith. Further, coverage was still at issue when the adjuster’s notes in question were ordered to be produced. See generally American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1449b] (where in its answer to the complaint, insurer denied that additional sums were covered under its policy, the issue of coverage was still partially pending). Accordingly, Castle Key precludes production of the adjuster’s notes at issue. As such, this matter is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion. (PRESCOTT and FIGAROLA, JJ, Concur.)
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1The opinion in Castle Key was issued on October 23, 2013 and was thus in effect when the court below issued its November 4, 2013 order on in camera inspection (which was re-issued on February 1, 2014). There is no indication in the record below or in the briefs on appeal that Castle Key was brought to the trial court’s attention and it is likely that the trial court was not aware of that decision prior to its November 4, 2013 order on in camera inspection.
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