22 Fla. L. Weekly Supp. 674a
Online Reference: FLWSUPP 2206ROMEInsurance — Personal injury protection — Discovery — Privilege — Work product — Pre-litigation adjuster notes in insurer’s claims file are not discoverable in first-party coverage and damages lawsuit between medical provider and insurer — Trial court departed from essential requirements of law in compelling disclosure of notes
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. YESENIA ROMERO, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-48 AP. L.C. Case No. 11-16921 SP 25. January 5, 2015. On certiorari review of the County Court for Miami-Dade County, Nuria Saenz, Judge. Counsel: Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale; and Abbi S. Freifeld, Roig Lawyers, Deerfield Beach, for Petitioner. George A. David, Coral Gables, for Respondent.
(Before SAYFIE, LOBREE, and LUCK, JJ.)
(PER CURIAM.) The issue in this case is one that has been well litigated before this court, the Third District Court of Appeal, and the Florida Supreme Court — whether pre-litigation documents in an insurer’s claims file are discoverable in a first-party coverage lawsuit between the insured and the insurer. Because we agree with our state’s highest court, the intermediate appellate court governing the Eleventh Circuit, and the appellate panels of this court to address the issue, we grant the petition for writ of certiorari.I.
In 2011, respondent Yesenia Romero sued petitioner State Farm Mutual Automobile Insurance Company for personal injury protection benefits for State Farm’s breach of an insurance contract and for violating the PIP statute in section 627.736. In her complaint, Romero alleged that she was involved in a motor vehicle accident on December 22, 2009, where she was injured and was treated by medical providers. Romero alleged that she was covered by State Farm for the medical expenses and her transportation expenses that resulted from the accident. Romero alleged that she submitted her claim for personal injury protection benefits and transportation costs, but State Farm breached the insurance contract and Florida law by refusing to pay the full amount of interest.
As part of the discovery process, Romero filed a request for State Farm to produce its “entire claims file concerning this case,” including “any and all computer generated adjusters’ notes made in this case up until the time that [State Farm] received [Romero’s] pre-suit demand letter regarding this case.” State Farm objected to the production of certain documents in its claims file, including the pre-lawsuit adjuster notes, because they were protected by the work product privilege, and Romero’s request was overly broad, unduly burdensome, irrelevant, and not reasonably related to lead to the discovery of admissible evidence.
In response to State Farm’s discovery objection, Romero moved to compel a better answer to its discovery request for the pre-demand letter adjuster notes. A hearing on Romero’s motion was held on November 28, 2012. At the end of the hearing, the trial court ordered State Farm to provide for an in camera inspection of all adjuster notes generated from the inception of the claim through the receipt of the first demand letter from Romero. The trial court also invited the parties to provide any case law addressing the issue. On January 11, 2013, the trial court issued its order. The trial court said it had reviewed in camera thirty pages of adjuster notes, and concluded that they were not protected under the work product doctrine because they were not prepared in anticipation of litigation. The trial court gave State Farm thirty days to comply with its order.
Instead, on February 8, 2013, State Farm filed a petition for writ of certiorari seeking to quash the trial court’s order compelling it to turn over the pre-demand letter adjuster notes in the claims file.II.
All three levels of Florida’s judiciary have said, in one form or another, that an insurance company’s claims file documents are not discoverable in a first-party coverage and damages lawsuit between an insurer and the insured. In Allstate Indemnity Company v. Ruiz, 899 So. 2d 1121 (Fla. 2005) [30 Fla. L. Weekly S219c], the Florida Supreme Court wrestled with the distinction between first- and third-party bad faith actions and its effect on the discovery of claims file documents. As part of its analysis, the Court adopted the Third District Court of Appeal’s approach in Fidelity & Casualty Insurance Company of New York v. Taylor, 525 So. 2d 908 (Fla. 3d DCA 1987), and quoted the following passage:
In a “first-party” action against an insurance carrier founded upon section 624.155(1)(b), which affirmatively creates a company duty to its insured to act in good faith in its dealings under the policy, liability is based upon the carrier’s conduct in processing and paying a given claim. Thus, the action is totally unlike an ordinary “insured vs. insurer” action brought only under the policy, in which the carrier’s claim file is deemed not producible essentially because its contents are not relevant to the only issues involved, those of coverage and damages . . . .
Ruiz, 899 So. 2d at 1129 (emphasis added) (quoting Taylor, 525 So. 2d at 909-10).1 In other words, in the ordinary insured-versus-insurer case, like Romero’s claim here, the insurance company’s claims file “is deemed not producible” because the documents are not relevant to determine whether the insurance contract covers the insured’s claims and the contractual amount of the damages.
Following Ruiz, the Third District has likewise held that “[w]here . . . the insured 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.” Castle Key Ins. Co. v. Benitez, 124 So. 3d 379, 380 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2226a] (alteration in original; quotation omitted). The Third District, moreover, has described as “well taken” the argument that “Florida law ‘prohibits insureds from obtaining discovery into an insurer’s claims files and claims handling material until contract/coverage litigation has concluded.’ ” State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D85b]; see also Gov’t Employees Ins. Co. v. Rodriguez, 960 So. 2d 794, 795-96 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1514a] (“[A] party is not entitled to discovery of an insurer’s claim file or documents relating to the insurer’s business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer’s obligation to provide coverage has been established.” (quotation omitted)); State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2514e] (quashing an order of production, holding that “State Farm’s claims files, manuals, guidelines and documents concerning its claim handling procedures were irrelevant to the first party dispute involved in this case”). The Third District granted petitions for certiorari in Benitez, Desai, Rodriguez, and Valido because the trial courts departed from the essential requirements of law by requiring the insurers to produce claims file documents during first-party coverage disputes. Claims file documents are “irrelevant” and not discoverable, the Court has said, before coverage and damages have been decided.
Our court has followed the Third District’s lead. In at least three cases, the court’s appellate panels have granted certiorari petitions where the trial courts had ordered insurers to produce adjuster notes and claims file material in first-party personal injury protection lawsuits. See State Farm Mut. Auto. Ins. Co. v. Perez, Case No. 13-408 AP (Fla. 11th Cir. Ct. Oct. 9, 2014) [22 Fla. L. Weekly Supp. 423a] (“[T]he Third District Court of Appeal has specifically held that, in cases such as this, ‘notes in the claims file’ are prohibited from disclosure. Based upon this ruling, we must quash the order below which compelled the productions of the notes.” (citation omitted)); State Farm. Mut. Auto. Ins. Co. v. Menendez, 21 Fla. L. Weekly Supp. 493c (Fla. 11th Cir. Ct. 2014) (same); State Farm Mut. Auto. Ins. Co. v. S. Miami Health Ctr., 21 Fla. L. Weekly Supp. 27a (Fla. 11th Cir. Ct. 2013) (“Twice recently the Third District Court of Appeal has granted petitions for writs of certiorari and applied Florida law which prohibits discovery of claims file documents and claims handling materials where a breach of contract or coverage issue is still pending and the case does not involve a bad faith claim.”).2
Here, there was a hearing on Romero’s motion to compel, where she conceded that the adjuster notes were part of the claims file.3 After the hearing, the trial court ordered State Farm to provide the adjuster notes generated from the inception of the claim up until the date of receipt of the first demand letter. State Farm, in response, provided thirty pages of documents under seal to the trial court. The trial court conducted an in camera review of the thirty pages, and concluded that they were adjuster notes (but were not protected by the work product privilege). We, too, have reviewed State Farm’s in camera submission and conclude, as the trial court did, that they are computer generated adjuster notes from State Farm’s claims file. See Benitez, 124 So. 3d at 380 n.1 (“The case law prohibiting the disclosure of ‘claims file’ material, however, 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 an individual claim.” (emphasis added)). The trial court’s order compelling disclosure of the thirty pages of adjuster notes therefore departed from the essential requirements of law. Id. at 380.III.
For these reasons, we grant State Farm’s petition for writ of certiorari quashing the trial court’s January 11, 2013 order compelling disclosure of the thirty pages of adjuster notes under seal.
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1The Florida Supreme Court wrote: “We now agree with the analytical approach of the court in Fidelity & Casualty Insurance Co. of New York v. Taylor[ ].” Ruiz, 899 So. 2d at 1129.
2The one case brought to our attention where certiorari had been denied was because there was no transcript of the hearing and the court said that “[w]ithout it, the specific arguments made and exact responses provided, as well as the lower court’s analysis of the information presented, cannot be determined.” State Farm Mut. Auto. Ins. Co v. S. Miami Health Ctr., 21 Fla. L. Weekly Supp. 626a (Fla. 11th Cir. Ct. 2013).
3In arguing in favor of the motion, Romero told the trial court: “The 3rd DCA case law, all additional case law, Your Honor, say just because a document sits in a claims file doesn’t mean it’s protected automatically.” Tr. at 20.
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