Recently, the federal court for the Middle District of Florida applied a rule of great interest to insureds who believe that their insurer has wrongly denied coverage: whether the insurer’s “claim file” can be requested in discovery.
In Redfish Key Villas Condominium Assoc., Inc. v. Amerisure Ins. Co. (April 3, 2014), the Redfish Key Villas Condominium Association had sued its contractor for defective work. The contractor failed to appear and defend itself, resulting in a default judgment for Redfish. But the real money in many construction-defect lawsuits, of course, often comes from the contractor’s insurer. A judgment is just a piece of paper if the defendant has nothing to pay you with. After learning that Amerisure was the insurer for the contractor, Redfish chased the money by filing a claim directly against Amerisure, asserting that Redfish was the “third party beneficiary” of the policy issued to the contractor.
As insureds often do, Redfish then asked for Amerisure’s entire “claim file,” which often contains the insurer’s frank, unfiltered assessments about damages, liability, and even coverage. Amerisure broadly objected to these requests on the basis of work-product privilege, which protects the thoughts and opinions of a party’s lawyers, agents, and, in the case with insurer, its adjusters that are prepared in anticipation of litigation. And Amerisure was right to withhold documents created by its attorneys giving legal advice to Amerisure about coverage. But Amerisure also withheld internal correspondence containing the opinions of Amerisure’s non-lawyer employees, which were created during the investigation of the claim, including their thoughts about insurance coverage for the Association’s claim.
In finding that these documents were not protected by the work-product privilege, the judge ruled that the documents were related to “routine claim investigation conducted in the normal course of business between two non-attorneys within Amerisure over one year before the construction-defect lawsuit.” Coverage counsel must mind this crucial distinction with care in first asking for documents and then, perhaps, fighting with an insurer protecting every scrap of paper in its files.
Federal courts in Florida generally have found that work-product protection does not attach to an insurer’s claim file until the date coverage is denied because until that point, the claim file is a business record, prepared in the ordinary course of the insurer’s business. Federal courts in Florida generally consider the denial of coverage as the turning point from a routine business record to a potentially protected document that was prepared in anticipation of litigation.
In contrast, where the issue of coverage is still in dispute, Florida state courts have broadly found that an entire claim file will be protected work-product, arguably creating a new “insurer claim file” privilege. This reading of the work-product doctrine is too broad. For example, the District Court of Appeal for the Fourth and Fifth districts in Florida have noted that the insured “may request” that the judge carefully review documents within a claims file to determine whether they are truly entitled to protection from disclosure. See State Farm Fla. Ins. Co. v. Aloni, 101 So.3d 412, 414–15 (Fla. 4th DCA 2012); State Farm Florida Ins. Co. v. Marascuillo, 2014 WL 2968831 (Fla. 5th DCA 2014). Insureds and their attorneys should be careful not to accept categorical claims of privilege based solely on the presence of an ongoing dispute about coverage.
While it may seem the Florida state courts favor insurers when it comes to production of their claims file, coverage counsel armed with the recent holding in Aloni and Marascuillo can push the Florida state courts to allow discovery of parts of an insurer’s claim file, similar to the general rule in Redfish favoring greater transparency from insurers.
Opinion reprinted from WestlawNext with permission of Thomson Reuters. If you wish to check the currency of this case by using KeyCite on WestlawNext, please visit www.next.westlaw.com.