23 Fla. L. Weekly Supp. 415a
Online Reference: FLWSUPP 2305PALMInsurance — Homeowners — Wind and hail damage to roof — Discovery — Non-parties — Work product privilege does not apply to file containing documents pertaining to inspection of insured residence by non-party that had contracted with insured for inspection of home where documents were not prepared in anticipation of litigation
ALRON CONSTRUCTION, LLC A/A/O MARTIN PALMA, Plaintiff, v. FEDERATED NATIONAL INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-CA-10148-O. October 9, 2015. Honorable Keith F. White, Judge. Counsel: Katie Monroe and Lee Jacobson, Hale, Hale & Jacobson, P.A., Orlando, for Plaintiff. Nina Jacobs, Simon, Reed & Salazar, P.A., Orlando, for Defendant.
ORDER ON DEFENDANT’S OBJECTION TONON-PARTY PRODUCTION PURSUANT TO FLORIDARULE OF CIVIL PROCEDURE 1.351(B)
THIS CAUSE came on for hearing on May 20, 2015 and September 17, 2015, the Court having heard argument of counsel and being otherwise fully advised in the premises, ORDERS AND ADJUDGES as follows:
1. This lawsuit involves a claim for homeowners’ insurance benefits, specifically alleged damages to the insured’s roof caused by wind and hail.
2. After receiving notice of the claim, Defendant utilized Donan Forensic Engineering (hereinafter “DONAN”) to perform an inspection of the roofing structure and provide an opinion as to causation and damages, if any.
3. After receiving the opinions of DONAN, Defendant wrote to its insured denying the claim for insurance benefits for any claimed damages to the roof, citing in substantial portion the findings of DONAN.
4. Plaintiff, pursuant to Rule 1.351 propounded a Notice of Production from Non-Party to DONAN seeking the entire file pertaining to the inspection of the residence of Defendant’s insured, Martin Palma.
5. Defendant objected to entirety of the Production citing the work product, claims file (irrelevancy) and consulting expert privileges.
6. After the original hearing, the Court ordered the Defendant to retrieve all documents from DONAN responsive to the production and provide them to the Court for in camera inspection.
7. After in camera inspection, Defendant’s objections are overruled.
8. The party asserting work product privilege bears the burden of presenting evidence that the documents sought are indeed prepared in anticipation of litigation unless manifestly apparent on the face of the withheld documents the privilege attaches.
9. After inspection, all of the documents reviewed do not manifestly appear to be prepared in anticipation of litigation.
10. Defendant’s burden has not been met. Defendant did not file any affidavits attesting to the fact that the documents were prepared in anticipation of litigation. Argument of counsel is not enough.
11. Moreover, the documents themselves reveal that they are not prepared in anticipation of litigation.
12. The DONAN report and the denial letter citing to the report all were prepared prior to litigation and were used to make a determination on the claim and thus were clearly not made in anticipation of litigation.
13. Defendant has a contract with the insured and Defendant performed an obligation (inspection of the home) in accord with its duties under the contract of insurance.
14. The only way for the Court to find that these documents were prepared in anticipation of litigation, or protected from disclosure as a result of the creation of documents or opinions formed by a litigation consulting expert would be if:
a. Defendant presented evidence, under oath, that Defendant knew it was going to deny the claim upon submission of the claim; or
b. That no matter what the findings of the DONAN report were, Plaintiff would have filed a lawsuit anyways.
15. There is no evidence of either (a) or (b) above. The documents are merely evidence of Defendant’s performance of its obligations under the contract of insurance and are thus discoverable.
16. At the hearing, the Court has provided Plaintiff the documents turned over to it by the Defendant.
