5 Fla. L. Weekly Supp. 783a
Insurance — Personal injury protection — Discovery — Action for nonpayment of insurance benefits filed by insured prior to end of insurer’s 30-day review period — Documents requested by insured appear to be calculated to lead to discovery of admissible evidence on issue of whether insurer ever intended to pay benefits to insured and are relevant to theory of anticipatory repudiation — Evidence of routine practice would be admissible to bolster claim of anticipatory repudiation, if plaintiff were able to show that insurer routinely denied payment of insurance benefits within statutory 30-day review period, and that insurer routinely refused to reconsider its position during same 30-day period — Defendant not required to produce requested documents because request is unduly burdensome, plaintiff failed to make showing of necessity sufficient to overcome claim of work product privilege, and plaintiff would not be entitled to production of requested documents if he had properly waited until end of 30-day review period to file this action
Additional ruling in this case at 6 Fla. L. Weekly Supp. 234b
MALCHUS SMITH, Plaintiff, vs. FORTUNE INSURANCE COMPANY, Defendant. County Court in and for Broward County. Case No. 97-2242-COCE-56. July 7, 1998. Robert W. Lee, Judge. Counsel: Laurie E. Moss, Davie, for Plaintiff. Van Anastasiou, Ft. Lauderdale, for Defendant.
ORDER SUSTAINING DEFENDANT’S OBJECTIONS TO PLAINTIFF’S REQUEST FOR PRODUCTION
THIS CASE came before the Court on June 26, 1998 for hearing of the Defendant’s Objections to Plaintiff’s Request for Production, and the Court’s having heard argument of counsel, reviewed the relevant case law, and been otherwise advised in the premises, rules as follows:
FINDINGS OF FACT: This is a PIP case. An issue in this case is whether the Plaintiff filed this action prior to the end of the Defendant’s statutory 30-day review period, and if so, whether the theory of anticipatory repudiation operates to allow the Plaintiff to prematurely file the case. To assist in his research on this theory, the Plaintiff served his Request for Production seeking documents, manuals, and procedure codes relating to CES/PC reviews; seeking memorandums and training manuals relating to use and interpretation of CES/PC reviews; seeking copies of all CES/PC reviews performed by the Defendant during the month of September 1997; and seeking copies of all PIP payout sheets relating to these CES/PC reviews.
The Defendant has objected to the production of these documents, claiming that they are not relevant nor likely to lead to admissible evidence1, that the request is overly broad and burdensome, and further that at least portions of these documents are covered by the work product privilege. The Defendant argues, correctly so, that these documents are generally not relevant to an action seeking payment of insurance benefits. See State Farm Fire & Casualty Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); Fidelity & Casualty Ins. Co. of New York v. Taylor, 525 So.2d 908, 909 (Fla. 3d DCA 1987). The Plaintiff, however, argues that this general rule is not applicable in this case because rather than merely being a case of non-payment of insurance benefits, the Plaintiff is relying on a possible anticipatory repudiation argument. In other words, the Plaintiff believes that the production of the requested documents will lead to evidence admissible on the issue of whether the Defendant had ever intended to pay the benefits to its insured.
CONCLUSIONS OF LAW: If the Plaintiff were able to show that Fortune routinely denied payment of insurance benefits within the statutory 30-day review period, and if Plaintiff were further able to show that Fortune routinely refused to reconsider its position during the same 30-day period, then this evidence of routine practice would be admissible to bolster Plaintiff’s claim of anticipatory repudiation. See C. Ehrhardt, Florida Evidence §406.1 (1997). Accordingly, Plaintiff’s request does appear to be calculated to lead to the discovery of admissible evidence. The Court agrees with Plaintiff that Valido is distinguishable because the requested documents in Valido were not relevant to the legal theories in that case. In the instant case, the requested documents are clearly relevant to at least one legal theory involved in this case. See also Taylor, 525 So.2d at 909.
In Taylor, the insured sought production of the insurer’s claim file in an action for failure to settle a claim in good faith. The insurer claimed that the documents were not producible, relying on the general rule that a “carrier’s claim file is deemed not producible essentially because its contents are not relevant to the only issues involved, those of coverage and damages.” Id. (emphasis added). The appellate court held that an action for failure to settle a claim in good faith was more than just an action involving “only” the issues of coverage and damages, and accordingly, the work product and attorney-client privileges were overcome by the insured’s need for this information. Id. Similarly, in the instant case, the Plaintiff’s theory of anticipatory repudiation raises issues other than “only coverage and damages.” However, this does not end the inquiry. The Court must then consider whether the Plaintiff’s need for information in this case has overcome the Defendant’s claim of work product privilege. In making this decision, the Court must balance the need of the Plaintiff for this information against the Defendant’s privilege, as well as any burden to the Defendant in producing this information. See Levenson v. Barnett Bank of Miami, 330 So.2d 192, 196 (Fla. 3d DCA 1976).
The Court accordingly next considers Defendant’s argument that the request is overly broad and burdensome. At the hearing, Defendant provided an affidavit of a representative of Fortune which set forth that over 10,000 hours of clerical time would be required to provide the information set forth in the Defendant’s first and second request: documents, manuals and procedure codes relating to CES/PC reviews; and memorandums and training manuals relating to use and interpretation of CES/PC reviews. The Court has already determined these documents to be relevant to Plaintiff’s case. However, again the inquiry does not end there. The Court is entitled to consider the expense and delay which may be occasioned by an order requiring production of these documents See Certain Underwriters at Lloyd’s London v. Hawthorne Flying Service, 63 So.2d 308, 310 (Fla. 1953).
In this case, the Court believes that the Plaintiff’s first two categories of requested documents are clearly unduly burdensome. Further, the Court does not believe that the production of these documents, as well as those requested in the remaining categories, overcomes the Defendant’s claim of work product privilege. See Travelers Indemnity Company v. Fields, 262 So.2d 222, 223 (Fla. 1st DCA 1972) (to overcome work product privilege, “compelling necessity” must be shown). This is particularly true in this case because these documents are not essential to the success of the Plaintiff’s theory, nor are they the only means of proving the Plaintiff’s theory. Cf. Taylor, 525 So.2d at 909 (insured would have considerable difficulty in proving their theory of bad faith if claims file was not made available). At the hearing on these Objections, Plaintiff’s counsel informed the Court that it is “general knowledge” that Fortune routinely denies payment of these types of claims. As mentioned above, evidence of Fortune’s routine practice would be admissible at the trial to support the Plaintiff’s theory, even if gleaned by those outside the company. Additionally, Plaintiff has set Fortune’s corporate representatives for deposition, who can be queried under oath on Fortune’s routine practices in this area.2 Further, the amount in dispute is relatively small compared to the extent of documents sought by the Plaintiff.
Finally, the Plaintiff clearly would not be entitled to the production of the requested documents if he had properly waited until the end of the 30-day review period to file this suit. The only possible relevance of these documents relates to the Plaintiff’s anticipatory repudiation claim, which arises solely because of the possibility that the Plaintiff filed this action prematurely.3 As a matter of public policy, the Court does not believe that an insured should be placed in a better position than other insureds who comply with the statutory requirements. Under all the circumstances set forth above, the Court declines to exercise its discretion to require production of these documents. See Fields, 262 So.2d at 223. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Objections are SUSTAINED.
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1See Hoogland v. Dollar Land Corporation, Ltd., 330 So.2d 509, 509-10 (Fla.4th DCA 1976).
2In light of this decision, the parties are advised that the Court will not be inclined to consider work-product objections if these questions are asked of these representatives at deposition.
3The Court makes no finding as to whether this action has in fact actually been filed prematurely.
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