24 Fla. L. Weekly Supp. 273d
Online Reference: FLWSUPP 2404CASTInsurance — Discovery — Trial court departed from essential requirements of law in ordering insurer to produce portions of its adjuster’s notes to medical provider in first-party non-bad-faith case
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NEW HORIZON MEDICAL DIAGNOSTIC CENTER CORPORATION, a/a/o Luz Angela Castano, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-223 AP. L.T. Case No. 12-1893 SP-25. July 15, 2016. On a Petition for Writ of Certiorari from the County Court, Miami-Dade County. Counsel: Nancy Gregoire and Paul Cannella, for Petitioner. George A. David, for Respondent.
(BERNSTEIN and ARZOLA, JJ.)
(PER CURIAM.) The trial court ordered the petitioner [State Farm] to produce during discovery its adjuster’s notes in this first-party non-bad-faith case. Adjuster’s notes in an insurance claim file are often presumed not subject to discovery because they are either irrelevant or protected by the work product privilege. See, e.g., Castle Key Insurance Co. v. Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013)[38 Fla. L. Weekly D2226a].
The respondent medical provider, New Horizon Medical & Diagnostic Center Corp. [New Horizon] asked the trial judge to review State Farm’s documents in camera to determine if the presumption applied in this case. The trial judge did so, but departed from the essential requirements of law by ordering production of the adjuster’s notes made prior to receipt of a demand letter.
State Farm’s petition is no model of clarity. Yet the materials reviewed in camera (including file notes specific to the handling of the assignee’s individual claim) appear privileged.
At the very least, New Horizon failed to overcome the presumption of privilege or demonstrate any other reason why the presumption should not bar production here.
We therefore grant the petition for writ of certiorari on the authority of State Farm v. Premier Diagnostic Centers, 185 So. 3rd 575, 3d DCA 2016), 41 Fla. L. Weekly D278a (January 27, 2016), and quash the discovery order that is the subject of these proceedings.
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(MUIR, J., Dissenting.) This certiorari proceeding involves a discovery order requiring State Farm to produce “adjuster’s notes” made before a date not specified in the order. On its face, the order runs afoul of numerous cases that determined “notes in the claims file” of an insurance company are subject to a work product privilege.
Because of exceptional circumstances in this certiorari proceeding, however, I dissent.
State Farm’s petition erroneously states, “The . . . Order rejects State Farm’s arguments and directs it to produce 37 pages of documents contained in its claim file, which are the Claim File Documents at issue here.” [Petition for Writ of Certiorari , p. 4.] In fact, at issue here is a limited discovery order for State Farm “to produce all Adjustor’s Notes created prior to receipt of a Demand Letter within 45 days.” [Appendix A1-1, A1-2.]
Although the challenged order provides that “Plaintiff’s Motion to Compel Production is Granted”, the trial judge actually granted only part of the relief requested. [Appendix A-11-1, A11-2] The trial court’s order did not require production of the 37 pages of documents after her in camera review.
The trial court’s order also limited the required production to adjuster’s notes made before receipt of a demand letter. Because the challenged order does not specify that date, State Farm should have included the date of the demand letter, at the very least, for this court’s second in camera review.
In its petition for a writ of certiorari, State Farm’s counsel referred to “highlighted portions of those documents” submitted to this court for in camera review; however, this judge found no highlighted portions in the 37 pages of the Petitioner’s Documents Under Seal filed June 7, 2013. (This judge highlighted portions of the documents submitted for in camera review before realizing that State Farm’s counsel had intended to highlight portions of the documents submitted but had not acted as intended.) [Petition for Writ of Certiorari, 1 A., page 9.]
Counsel’s stated intention to highlight portions of the 37 pages of documents submitted for a second review in camera by this court is inconsistent with its assertion that the trial judge’s order “directs it to produce 37 pages of documents contained in its claim file.” [Petition for Writ of Certiorari, p. 4.] Why would State Farm need to highlight any portion for this court’s review, if State Farm had been directed “to produce 37 pages of documents”?
My colleagues would quash the trial court’s order on the authority of many opinions on “claim file documents”, citing e.g., State Farm Mut. Auto. Ins. Co. v. Premier Diagnostic Centers, LLC., 185 So. 3d 575 (Fla. 3d DCA 2016)[41 Fla. L. Weekly D278a].
A grant of certiorari is an extraordinary remedy and requires that a discovery order depart from the essential requirements of law and will cause the responding party irreparable harm throughout the remainder of the case.
I fully agree with my colleagues that until coverage and damage issues are resolved, to require production of claim file materials including adjuster’s notes is usually error. However, in this case State Farm’s inadequate privilege log and notes not clearly specified in the production for a second in camera review, make a determination whether State Farm would be irreparably harmed difficult for this judge.
State Farm’s claim of work product privilege for “Adjuster Log Notes” cannot be related to specific notes or documents in the 37 pages this judge reviewed in camera. State Farm’s privilege log indicated only that “adjuster log notes” were “various dates” on “numerous pages”. [Appendix A6-2.]
State Farm had no problem indicating the dates in its privilege log of every other item for which it claimed a work product privilege, and the trial judge ultimately agreed that those items were privileged, releasing only “adjuster’s notes” made before a certain date. Why should State Farm keep only the dates of “adjuster’s notes” from opposing parties and the courts, when providing dates of the notes could have clarified the scope of production and facilitated a second requested in camera review?
For State Farm to cause this court to guess where any adjuster notes are found in the 37 pages the trial court reviewed, beginning with its inadequate privilege log, is a burden the appellate courts need not share. State Farm alone has the knowledge to respond to clarify the scope and time limitation of the discovery order which it sought to have reviewed. By failing to submit to this court in camera only the “adjuster’s notes” that the trial court actually ordered produced, the petitioner has failed to show that the trial court’s order departs from the essential requirements of law and will cause State Farm irreparable harm.
Only pages 14 through 20 of the documents reviewed by this court in camera have “notes” designated “file” or “claim” (but not “adjuster’s”) so why did the petitioner for certiorari submit for review the 30 or so additional pages? (Page 13 of the in camera documents is missing and presumed redacted.) State Farm’s position that the trial judge order required production of at least 30 additional pages that were submitted for our in camera review is not correct. [Petition, p. 4.]
In the transcript of a hearing that predated the order sought to be quashed, State Farm’s counsel indicated that notes after a request by State Farm for an independent medical examination of its insureds would be “in anticipation of litigation” so its work product claims for certain notes predating an IME request appear to have been waived. [Appendix A-15, page 6, lines 7-8.]
Stripped of its misconceptions, State Farm’s attack on the trial court’s order should have focused on whether the trial judge simply picked the wrong date after which no adjuster’s notes need be produced. Although the order on its face appears to violate the work product privilege of State Farm as to some of its adjuster’s notes, this court’s majority opinion is an unwarranted intervention in a small claims discovery dispute.
Moreover, the majority opinion indicates that “New Horizons has failed to overcome the presumption of privilege or demonstrate any other reason why the presumption should not bar production here”. But New Horizons properly cited Florida Rule of Civil Procedure 1.280(b)(5) (2010) which specifically states:
When a party withholds information otherwise discoverable under these rules by claiming it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege. . .
New Horizons also cited TIG Insurance Corp. of America v. Johnson, 799 So. 2d 339, 341-342 (Fla. 4th DCA 2001)[26 Fla. L. Weekly D2493a], adopting federal precedent that a party objecting to disclosing privileged material should detail the following in a privilege log: 1) the type of document; 2) the general subject matter of the document, 3) the date of the document and 4) other information so to identify the document where appropriate, including the author and address. This judge is persuaded that State Farm set in motion with its inadequate privilege log with no dates or other detail a futile review of its work product privilege claim and second in camera inspection.. Despite raising the Spector of “overtreating, overbilling, and outright fraud” in PIP cases, State Farm should not prevail in quashing the trial court’s limited discovery order under the unique circumstances of this case. [Reply to Response to Petition, page 12-13.]
The trial judge whose non-final order is challenged no longer serves, but State Farm could have moved a successor judge to eliminate any confusion it expressed regarding the scope and meaning of the discovery order State Farm seeks to quash.
At this level we should not reconsider the extent the trial court found that State Farm waived its work product privilege as to any “notes” made before an IME request, or notes made before a demand letter. And we should not have to guess which “notes” in State Farm’s 37 pages of documents need be produced.
State Farm alone has knowledge of which notes in its possession were made by adjusters and when, and State Farm alone has the ability to provide that information to allow an in camera review.
It is clear from this judge’s in camera review that any notes are by “performers” without designation except by name. Only State Farm could know what discovery was ordered by the trial judge, because only State Farm knows which “performers” were “adjusters”.
It is not the function of an appellate court to review errors allegedly committed by trial courts, raised for the first time on appeal, which the complaining party could have, but did not, present to the trial court. Abrams v. Paul, 453 So. 2d 826, 827 (Fla. 1st DCA 1984).
For the foregoing reasons, I would deny State Farm’s petition for a writ of certiorari.
