9 Fla. L. Weekly Supp. 139a
Insurance — Personal injury protection — Discovery — Adjuster notes — Work-product privilege — Insured is entitled to all computer notes entered in claim by PIP adjuster that existed up to point in time that insurer initiated adversarial process by informing insured that it would no longer honor payment of medical bills as a result of insured’s failure to attend compulsory medical examination — Additionally, because computer entry notes made after that date in no way relate to contemplated litigation, court orders release of PIP adjuster’s computer records up to point of insured’s filing of breach of contract suit
ELIZABETH CHARLES-HENRY, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CC0-00-15292 Div 73. December 18, 2001. Wilfredo Martinez, Judge. Counsel: Jeffrey M. Byrd, Jeffrey M. Byrd, P.A., Orlando. Ken Blackwell, Adams, Blackwell & Diaco, P.A., Tampa.
ORDER ON PLAINTIFF’S MOTION TO COMPELADJUSTER NOTES
This cause came to be heard before the Court on Plaintiff’s Motion to Compel Discovery and/or In Camera Inspection on Friday, November 9, 2001 at 10:00 a.m., and the Court having considered the testimony and arguments presented, it is hereby ORDERED AND ADJUDGED that:
1. The Court has reviewed Plaintiff’s Motion to Compel Discovery and/or In Camera Inspection dated August 29, 2001, in which the Plaintiff sought production of computer notes entered by the PIP Adjuster in the claim which is the subject of this litigation.
2. The Plaintiff already deposed the Defendant’s insurance adjuster, Barry Horn, who was requested to bring to such deposition telephone logs and computer inputted information; however, such adjuster would not provide those documents to Plaintiff’s counsel at the deposition, but rather sealed such documents for a later in camera review.
3. The Defendant objected to production of such documents on the basis of “work-product” privilege; however, it was to be determined by the Court as to whether such documents are truly protected from discovery on the basis of such privilege (Eastern Airlines, Inc. vs. Gellert, 431 So. 2d 329 (Fla. 3d 1983)).
4. Counsel for the Plaintiff contends that the PIP insurer, as a fiduciary to the insured, (the Plaintiff herein) had a contractual, statutory, and fiduciary obligation to maintain an accurate and complete insurance file on behalf of the insured.
5. The Defendant contended that any such notes reflected the mental impressions of the Insurance adjuster, and constituted work-product of the Defendant.
6. The Court has considered the case of Cotton States Mutual Insurance Company vs. Turtle Reef Associates, Inc., 444 So. 2d 595 (Fla. 4th DCA 1984) which stands for the position that the work-product privilege attaches to statements or materials prepared by a party investigator or insurer, only if such documents were prepared in contemplation of litigation. The “mere likelihood of litigation does not satisfy this qualification”, and materials that are “assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation are excluded from work-product”.
7. Further, the Court has considered additional law from the Colorado Supreme Court in the case of Hawkins vs. District Court, 638 P. 2d 1372 (Colo. 1982), which dealt with an insured’s request from its insurer of a copy of its insurance company’s claim file in a breach of contract suit. That case dealt with similar discovery requests, and a work-product objection, in response to which the Colorado Supreme Court determined that discovery rules were not designed to “insulate insurance companies nearly because they always deal with potential claims. If this were true, they would be relieved of a substantial portion of the obligations of discovery imposed on parties generally that are designed to insure that the fact finding process does not become reduced to gamesmanship that rewards parties for hiding or obscuring potentially significant facts”. Furthermore, “because a substantial part of an insurance company’s business is to investigate claims made by an insured against the company or by some other party against an insured, it must be presumed that such investigations are part of the normal business activity of the company and that such reports and witness’ statements complied by or on behalf of the insurer in the course of such investigations are ordinary business records as distinguished from trial preparation materials”.
8. Having considered such law, the Court concludes that there was no litigation anticipated until such time as the insurer informed its insured that it would no longer honor payment of medical bills as a result of the insured’s failure to attend a compulsory medical examination (which the Plaintiff did not attend). Accordingly, the Plaintiff is entitled to all such computer entry notes that existed up to the point in time that the insurer initiated an adversarial process with its insured.
9. Additionally, the Court has reviewed further computer entry notes made after that date, and found that such records in no way relate to contemplated litigation; therefore, after an in camera review, the Court is Ordering release of such discoverable records up to the point of the Plaintiff’s filing of the subject Breach of Contract suit.
10. Therefore, for the forgoing reasons, the Plaintiff’s Motion to Compel is GRANTED, and in light of the Court’s ruling, the Defendant has authorized release of thirty-seven and one half pages of documents consisting of the Insurance adjuster’s computer records up to the point that the Plaintiff filed suit in the subject litigation.
11. The Court reserves ruling on the issue of Fees and Costs related to the Plaintiff’s bringing of such Motion.
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