24 Fla. L. Weekly Supp. 569a
Online Reference: FLWSUPP 2407TANKInsurance — Personal injury protection — Discovery — In action seeking declaration that insurer cancelled or failed to renew PIP policy based on arbitrary or capricious reasons, insured is entitled to discovery of underwriting file, underwriting requirements and guidelines; underwriting requirements and guidelines that support non-renewal of insured’s policy; and all documents considered in deciding not to renew policy — Precedent holding that underwriting file is only discoverable in bad faith claim is not applicable since statute governing bad faith claims does not include claim for wrongful cancellation or non-renewal of policy
OLIVER PERRY TANKSLEY, III, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2010 CA 007418 NC. August 12, 2016. Erika N. Quartermaine, Judge. Counsel: Frank Butler, for Plaintiff. David Abbey, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
THIS MATTER came for hearing on August 11, 2016 on the Plaintiff’s Motion to Compel Response to the Plaintiff’s Second Supplemental Request for Production (the “RFP”). The Court has considered the Motion and been otherwise advised the in premises.
In order to prevail on its cause of action in the Second Amended Complaint for Declaratory Relief Upon Notice of Non-Renewal of Automobile Insurance Coverage: Declaratory Relief, the Plaintiff will need to prove United Services Automobile Association’s (“USAA”) cancelled or failed to renew based upon “arbitrary or capricious” reasons pursuant to section 627.728 of the Florida Statutes.
In the RFP, the Plaintiff seeks the following:
1. The complete underwriting file;
2. A complete copy of USAA’s underwriting guidelines and/or requirements;
3. A complete copy of all policies, requirements, guidelines, etc. used by USAA underwriters in assessing risk in the process of underwriting;
4. A complete copy of all policies, requirements, guidelines, etc. used by USAA underwriters in determining acceptable v. unacceptable risk in the process of underwriting;
5. A complete copy of any and all specific underwriting rules, guidelines, requirements, etc. that support the basis for the non-renewal of the Policy; and
6. All documents, correspondence, memoranda, guidelines, rules, etc. that were reviewed consulted or considered in making the decision to non-renew the subject policy.
USAA filed its Response to the RFP and later amended. There were a number of objections to the documents sought however the main objection appears to be the holding in State Farm Mutual Auto. Ins. Co. v. O’Hearn, 975 So. 2d 633 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D708a] (which holds that a bad faith claim does not accrue until there has been a final determination of both liability and damages in an underlying coverage claim and as a result, the underwriting file are not discoverable until damages are finally determined). As the Third District Court of Appeal described in Gen. Star Ind. Co. v. Atlantic Hospitality of Fla., LLC, 93 So. 3d 501 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1763b], the Florida Supreme Court confirmed in QBE Ins. Co. v. Chalfonte Condo. Apt. Ass’n., 94 So. 3d 541 (Fla. 2012) [37 Fla. L. Weekly S395a], that bad faith claims are now brought pursuant to section 624.155 of the Florida Statutes notwithstanding previously available common law causes of action. Section 624.155 specifically lists the types of violations that may be brought as a bad faith claim. That statute does not include a violation pursuant to section 627.728 or any language related to wrongful cancellation or non-renewal. Therefore, the Court finds O’Hearn distinguishable and inapplicable. Further, unlike a claim pursuant to section 624.155, the instant cause of action as alleged would exist independent of a denial of all or any part of a related claim. While a related insurance claim may be relevant, it is not determinative of the existence of the claim under section 627.728
Neither party provided authority regarding discovery of the above listed documents in the course of a Declaratory Relief action pursuant to section 627.728. Therefore, the Court is without precedent in this analysis. However, upon the language of the statute and conclusions above, the Court finds that the above matters are discoverable in this case. It would be impossible to find a policy cancellation or non-renewal is “arbitrary or capricious” without a standard and a comparison with other cases. The court finds however, that it cannot be without a time limitation and limits the discoverable documents to those that were operative a year prior to the non-renewal notice in this case and a year after the same (with respect to numbers 2 through 5 in the RFP). The documents sought in 1 and 6 of the RFP are discoverable without limitation as to time. All other objections raised by USAA are denied. The Court notes the privilege objections are premature and should begin with the completion of a privilege log.
It is hereby ORDERED and ADJUDGED that the Motion to Compel is GRANTED consistent herewith.
