24 Fla. L. Weekly Supp. 486b
Online Reference: FLWSUPP 2407FEIJInsurance — Personal injury protection — Discovery — Error to require production of claim file documents in first party non-bad faith PIP suit
STATE FARM MUTUAL AUTOMOBILE COMPANY, Petitioner, vs. MANUAL V. FEIJOO, M.D. and MANUEL V. FEIJOO, M.D., P.A., a/a/o Nerly Y. Campos, Respondents. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-232 AP. September 15, 2016. On appeal from the County Court for Miami-Dade County, Judge Don S. Cohn. Counsel: Diane H. Tutt, B.C.S., Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., for Petitioner. Marlene S. Reiss, P.A., for Respondent.
(Before TRAWICK, MILIAN AND MILLAN, JJ.)
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) petitions for writ of certiorari from an order entered by the trial court on May 22, 2014. The petition stems from a suit by a medical provider seeking declaratory relief and breach of contract in connection with personal injury protection insurance benefits (“PIP benefits”) under an automobile insurance policy. Respondents Manuel V. Feijoo, M.D. and Manuel V. Feijoo, M.D., P.A. (“Dr. Feijoo”) claim PIP benefits as an assignee of Nerly Campos, who was injured in a motor vehicle accident and was insured at that time by State Farm.
Dr. Feijoo served a request to produce several documents, including State Farm’s claim file. State Farm produced some of the documents, but objected to some of the requests by filing a privilege log. The privilege log contended that some of the documents were protected by attorney-client or work product privilege. Dr. Feijoo moved for an in camera inspection of the documents listed in the privilege log. State Farm opposed the motion. Prior to the hearing, State Farm filed an amended privilege log, which added several documents to the list.
The trial court held a hearing on April 3, 2014. Dr. Feijoo withdrew his request for an in camera inspection for the documents State Farm claimed under the attorney-client privilege. State Farm had no objection to the court conducting an in camera inspection of certain documents such as in-house communications and the comprehensive report, but objected to an inspection of the claim notes as they were privileged in a first-party insurance suit. Dr. Feijoo agreed that claim files are not subject to discovery, but argued that other documents might be “stuffed” into a folder marked claim file. He wanted the Court to review the documents to determine if they were indeed claim file materials.
The trial court conducted the in camera inspection of the documents and entered an order on May 22, 2014, which is the subject of this petition. The court concluded that some of the documents were work product and did not need to be produced. Other documents, those not prepared in anticipation of litigation, were ordered to be produced within 45 days of the order. This petition for writ of certiorari seeks review of those documents which were ordered to be produced, which State Farm maintains are claims-file privileged. The documents at issue were provided to this court under seal for an in camera review.
This court has conducted an in camera inspection of the documents and determined that the documents in question are claim file materials. Thus, the issue before this court is whether claim file materials are discoverable in a first party non-bad faith case. In State Farm v. Premier Diagnostic Centers, 185 So. 3d 575, 576 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D278a], the court held that in first party non-bad-faith cases, the insurer’s claim file is not discoverable. In its holding, the Premier Diagnostics court cited to Nationwide Ins. Co. of Fla. v. Demmo, 57 So. 3d 982, 984 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D707a], where the court stated 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 a breach of contract.” [emphasis supplied]. Although the Demmo Court goes on to state that “a trial court departs from the essential requirements of the law in compelling disclosure of the content of an insurer’s claim file when coverage is in dispute,” case law has shown that the concept of “coverage dispute” encompasses when coverage or damages are in dispute. See State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2590a], (where the court held that “until the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims filed or to the insurer’s business policies and practices regarding the handling of claims.)” In other words, a coverage dispute is not just a dispute about whether a claim is “covered” by insurance, but also how much of the claim is covered.
Here, Respondent was not pursuing a bad faith claim. Rather, the complaint alleges a declaratory action and breach of contract. Under the rationale of Premier Diagnostics, supra, the trial court erred when it ordered State Farm to produce portions of its claim file documents. For these reasons, we GRANT the petition for writ of certiorari and QUASH the May 22, 2014 Order requiring that the documents be produced.
Petitioner’s motion for appellate attorney’s fees pursuant to the Proposal for Settlement served by Petitioner on Respondents pursuant to Section 786.79 is hereby GRANTED, subject to the trial court’s determination of entitlement under the Proposal for Settlement.
Respondent’s motion for appellate attorney’s fees is hereby DENIED.
