24 Fla. L. Weekly Supp. 421b
Online Reference: FLWSUPP 2406POLKInsurance — Homeowners — Discovery — Work product — Objection to production of entire file that was compiled by forensic engineer hired by insurer to inspect homeowners’ damaged roof and used to prepare report relied upon by insurer in denying claim is denied — In camera inspection does not manifestly reveal that documents were prepared in anticipation of litigation
MAUREEN POLK and JERRY POLK, Plaintiffs, v. FEDERATED NATIONAL INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-CA-00230-O. August 15, 2016. Janet C. Thorpe, Judge. Counsel: Katie Monroe, Hale, Hale & Jacobson, PA, Orlando, for Plaintiff. Nina Jacobs, Simon, Reed & Salazar, P.A., for Defendant.
ORDER ON DEFENDANT’S OBJECTION TONON-PARTY PRODUCTION PURSUANT TOFLORIDA RULE OF CIVIL PROCEDURE 1.351(B)
THIS CAUSE came before the after and in camera review of document production pursuant to its order after hearing dated October 19, 2015, the Court having heard argument of counsel and being otherwise fully advised in the premises, finds as follows:
1. This lawsuit involves a claim for homeowners’ insurance benefits, specifically alleged damages to the insured roof caused by wind and hail.
2. After receiving notice of the claim, Defendant employed Donan forensic Engineering (“Donan”) to perform an inspection of the Plaintiffs’ residence and provide an opinion as to causation and damages, if any.
3. Upon receiving the report of Donan, Defendant denied Plaintiffs’ claim for any damages to the roof enclosing a copy of Donan’s report for their review.
4. Plaintiff pursuant to Rule 1.352 propounded a Notice of Production from Non-Party to Donan seeking its entire file relation to its inspection of Plaintiff’s residence.
5. Defendant objected to the production citing work-product/consulting expert privileges.
6. At 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 an in camera inspection.
7. Having reviewed the documents in camera, the Court finds Defendant’s objections are overruled.
8. The Defendant having asserted the 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 to which the privilege attaches.
9. The inspection of these documents did not manifestly reveal that they were prepared in anticipation of litigation.
10. Defendant having not filed any affidavit attesting to the fact that the documents were prepared in anticipation of litigation has not met its burden. Argument of counsel is insufficient.
11. The Donan report dated September 15, 2014 and attached to Defendant’s denial letter was prepared prior to the litigation and was used to determine Plaintiff’s initial claim and thus the information gathered which served as the foundation of that report could not have been made in anticipation of litigation.
NOW THERE FOR THE COURT ORDERS AND ADJUDGES:
That within ten (10) days of the date hereof, Plaintiff shall pick up from the undersigned’s chambers [1720] the 114 pages of nonparty production from Donan turned over to the Court by Defendant for its in camera.
