9 Fla. L. Weekly Supp. 324b
Insurance — Discovery — Work product — “Face sheet notes” generated over time by adjusters and other insurance company personnel reviewing plaintiff’s claim and retained in defendant’s computer system — Insurer to produce face sheet notes generated prior to certain date because no evidence of any intent to question plaintiff’s claims appears in the notes prior to that date — Motion to compel denied with regard to face sheet notes which were generated after specified date and which concern insurer’s decision to request compulsory medical examination and, eventually, to terminate coverage
JOSH OSCAR, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Civil Division. Case No. 2001-CC11-2885. February 27, 2002. Michael E. Raiden, Judge. Counsel: James Pacitti, Orlando, for Plaintiff. Maria Y. Somers, St. Petersburg, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR IN CAMERAINSPECTION and MOTION TO COMPEL
This cause came on for hearing on the Motion for In Camera Inspection and “Motion to Compel Production of Documents Claimed as Privileged” by Plaintiff JOSH OSCAR. Upon a review of the motion, the files and records in this case, the arguments of counsel, and the applicable law, the Court finds as follows:
1. Defendant PROGRESSIVE EXPRESS INSURANCE COMPANY has asserted a claim of work-product privilege to a number of items sought during the discovery process. Defendant agreed to submit all disputed documents for in camera inspection by the Court. This inspection has determined that the restricted documents fall into two discrete classes. The only class meriting extended discussion is a series of “face sheet notes” generated over time by adjustors and other insurance company personnel reviewing the Plaintiff’s claim, and retained in the Defendant’s computer system. The existence of these notes came to light during the deposition of claims representative Latricia Neal.
2. Not all business records are work product. Only those prepared in anticipation of litigation may be privileged. “Fact” work product consists of information gathered from other sources, while “opinion” work product consists primarily of mental impressions, conclusions, opinions, and theories. Southern Bell Telephone & Telegraph Co. v. Deason, 632 So. 2d 1377 (Fla. 1994). Without revealing the content of the “face sheet notes” in detail, they appear to contain both types, though primarily the former. A great deal of their substance is functionally useless within the context of this litigation, dealing with such matters as coverage (which Defendant resolved internally and in Plaintiff’s favor). It is difficult to ascertain exactly when any reasonable anticipation of litigation arose in this matter. Unlike some published cases, e.g., Prudential Insurance Company of America v. Florida Department of Insurance, 694 So. 2d 772 (Fla. 2d DCA 1997), no affidavits were submitted justifying the claim of work product status. On the other hand, the Second District Court of Appeal appears to have adopted a fairly broad view of work product, extending it to materials “compiled in response to some event which foreseeably could be made the basis of a claim,” rather than requiring the existence or threat of specific litigation. Anchor National Financial Services, Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989). In today’s litigious climate a lawsuit is probably foreseeable any time insurance benefits are denied to a claimant.1 No evidence of any intent to question Plaintiff’s claim appears in the face sheet notes prior to February 17, 2001. Thus, any such notes generated prior to that time arguably are not protected by the work product privilege; even if a contrary conclusion were to be reached, their probative value to either party strikes this Court as so minimal that Defendant is hardly prejudiced by their disclosure.
3. Face sheet notes from February 17, 2001, onwards concern Defendant’s decision to request a compulsory medical examination and, eventually, to terminate benefits. Having concluded that these were generated when litigation was at least foreseeable, the Court must next determine whether Plaintiff has demonstrated a need for the documents sufficient to overcome the privilege, which is not absolute. See Fla. R. Civ. P. 1.280(b)(3). One of Defendant’s objections, that the records are merely cumulative of the deposition testimony of Ms. Neal, is not well-taken. In general, Plaintiff desires to know why Defendant decided to order an IME, terminate benefits, and reduce payment on certain bills. While Ms. Neal’s deposition clearly establishes that the reductions were based solely on resort to a computer program, she appears to have lacked the authority either to request the IME or to curtail benefits. However, this fact alone does not compel disclosure. To the extent the disputed materials assist with any questions unanswered by Ms. Neal, they appear to this Court to be pervaded with “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation” and thus, under Rule 1.280(b)(3), would have to be redacted even if discovery were otherwise ordered. And see Fireman’s Fund Insurance Co. v. Singorelli, 681 So. 2d 720 (Fla. 2d DCA 1996).
4. The remaining documents submitted for in camera inspection are clearly work product. Moreover, Plaintiff has not demonstrated a need for the information contained therein, nor is it conceivable to the Court how he could do so in the context of an action to recover PIP benefits.
Accordingly, the Court does hereby ORDER and ADJUDGE as follows:
1. Plaintiff’s motion for an in camera inspection is GRANTED;
2. Plaintiff’s motion to compel is GRANTED only to the extent Defendant shall provide all “face sheet notes” generated in this case prior to February 17, 2001;
3. Plaintiff’s motion to compel is otherwise DENIED.
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1Perhaps this is the reason some published decisions flatly state that the contents of an insurance claims file are work product. See, e.g., American States Insurance Co. v. Kransco, 641 So. 2d 175 (Fla. 5th DCA 1994). Of course, the privilege generally evaporates in a bad faith action.
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