18 Fla. L. Weekly Supp. 968a
Online Reference: FLWSUPP 1810JIMEInsurance — Personal injury protection — Discovery — Petition for writ of certiorari challenging order to produce adjuster notes generated up until receipt of demand letter is granted — Trial court departed from essential requirements of law by ordering production without reviewing privilege log, individually analyzing work product objections and conducting in camera inspection and insurer will suffer irreparable harm from disclosure of work product
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. SOUTH MIAMI HEALTH CENTER, INC. a/a/o Lorena Jimenez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-348 AP. L.C. Case No. 09-11478 SP 25. August 18, 2011. An Appeal from a decision rendered by the Miami-Dade County Court, Andrew Hague. Counsel: Nancy W. Gregoire, for Appellant. George A. David, for Appellee.
(Before, RODRIGUEZ, CUETO and ARZOLA, JJ.)
(ARZOLA, Judge.) On November 7, 2008, Lorena Jimenez was involved in an automobile accident and sustained personal injury. Ms. Jimenez was treated by Plaintiff/Respondent South Miami Health Center, Inc. (“SMHC”) on November 11, 2008, through February 25, 2009, for her injuries. Ms. Jimenez had a personal injury protection (“PIP”) policy with State Farm insurance Company (“State Farm”). Ms. Jimenez assigned her rights to collect her PIP benefits to SMHC. State Farm did not pay the full amount requested by SMHC. A civil suit was filed suit against State Farm by SMHC to collect the outstanding balance. State Farm was served with multiple requests for production by SMHC seeking State Farm’s entire claim file, including adjustor notes and emails up until the time that SMHC sent its demand letter. State Farm objected to turning over the files pursuant to the work product doctrine. In support of its work product objection, State Farm also filed a privilege log listing the documents for which it sought protection. In a hearing on a motion to compel production of the documents, the trial court found in favor of SMHC and ordered production of the documents in question. State Farm requested that an in camera review of the documents be conducted prior to submitting them to SMHC. Subsequently, the trial court entered an order (“production order”) giving State Farm 30 days to submit all “adjustor notes up until receipt of the first demand letter . . . .” The production order further provided that State Farm could request an in camera inspection if it deemed something in the adjustor notes “uniquely and extraordinarily privileged.” Instead of producing the documents pursuant to the production order, State Farm petitioned this court for a Writ of Certiorari.
Specifically, State Farm seeks review of the trial court order directing it to produce adjustor notes generated up until receipt of the statutory pre-suit demand letter. The standard of review is whether the production order departs from the essential requirements of the law and will cause State Farm irreparable harm throughout the remainder of the case. See Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1149 (Fla. 3d DCA 2009) [33 Fla. L. Weekly D2775a]; CNL Resort Hotel L.P. v. City of Doral, 991 So.2d 417, 420 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2265a]; American Exp. Travel Related Services, Inc. v. Cruz, 761 So.2d 1206, 1208 (Fla. 4th DCA 2001) [25 Fla. L. Weekly D1542a] (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987)).
It is well settled that documents protected by work product immunity must not be lightly invaded. Intercontinental Properties, Inc. v. Samy, 685 So. 2d 1035, 1036 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D203a]. Documents are protected by the work product doctrine when they are prepared “[i]n response to some event which foreseeably could be made the basis of a claim in the future.” Marshall of MA, Inc. v. Minsal, 932 So.2d 444, 445 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1425a]. “Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Florida Const., Commerce & Indus. Self Insurers Fund, 720 So. 2d 535, 537 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1561c] (quoting Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760 (Fla. 2d DCA 1989)).
In the instant case, the foregoing standard was not applied during the hearing. Instead, the words “gem” and “unequivocally and extraordinarily privileged” were used in evaluating whether or not the documents were protected by the work product doctrine. The trial court misapplied the law in holding that no document prepared prior to SMHC’s demand letter was created in anticipation of litigation. Additionally, a review of the hearing transcript demonstrates that the judge based his decision, at least in part, on a prior ruling in an unrelated case involving the same issues and the same attorneys. There is no indication that the lower court reviewed State Farm’s privilege log or any documents identified therein during the hearing. The aforementioned analysis undertaken by the trial court is not consistent with the standard in Florida for determining the applicability of the work product doctrine.
The trial court departed from the essential requirements of the law in issuing the production order without first reviewing the privilege log, individually analyzing the work product objections and conducting an in camera inspection. See Allstate Insurance Company, Inc. v. Walker, 583 So.2d 358 (Fla. 4th DCA 1991) (noting that when the work product privilege is asserted, the court must hold an in camera inspection of the materials to determine the applicability of the privilege.); See also United Services Auto. Ass’n v. Buckstein, 891 So.2d 1153, 1154 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D290c]; Ashemimry v. Ba Nafa, 847 So.2d 603, 605 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1459d]; Del Carmen Calzon v. Capital Bank, 689 So.2d 279, 281 (Fla. 3d DCA 2003) [20 Fla. L. Weekly D2603a].
The applicable standard of review also requires an analysis of whether or not State Farm will suffer irreparable harm. “Orders compelling production of matters claimed to be protected by the . . . work product doctrine present the required potential for irreparable harm.” Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021, 1022 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1705a] (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)). Disclosure of the adjustor notes, which State Farm is claiming to be protected work product, would result in the requisite irreparable harm.
Accordingly, this Court grants the petition, quashes the production order and remands with instructions for the trial court to conduct proceedings consistent with this opinion, including an in camera review of the documents in question. This court reaches no conclusions about the applicability of the work product doctrine asserted by State Farm as to the documents in question, that determination is reserved for the trial court.
Additionally, Respondent’s (SMHC) petition for attorney’s fees is DENIED.
