Roig Lawyers Partner Obtains Favorable Ruling from the 11th Circuit Appellate Division

Roig Lawyers partner Abbi S. Freifeld secured a victory on behalf on the petitioner/insurer when the Appellate Division of the Eleventh Judicial Circuit in and for Miami-Dade County issued a ruling reversing the lower court’s order compelling production of the insurer’s pre-litigation documents. The court held that such documents are not discoverable in a first-party coverage lawsuit between the insured and the insurer.

In 2011, the respondent sued the insurer for PIP benefits, alleging that the insurer breached the insurance contract and violated the Florida PIP statute in not paying for claims resulting from a 2009 motor vehicle accident. The respondent filed a request for the insurer’s “entire claims file concerning the case,” including all of the adjuster’s notes made prior to the pre-suit demand letter. The insurer objected to the production, asserting work-product privilege.

A hearing on the issue was held in the trial court. Following an in camera inspection of the adjuster’s notes, the judge determined that they were not protected under the work-product doctrine because they were not prepared in anticipation of litigation. The court ordered the insurer to produce all the adjuster’s notes. The insurer sought to have the appellate division quash the order.

In its analysis, the appellate division noted that all three levels of Florida’s judiciary, including its own court, have said that an insurance company’s claims file documents are not discoverable in a first-party coverage and damages lawsuit between an insurer and the insured. The court cited a Third District case, Castle Key v. Benitez, in concluding that “where the insured is not seeking a bad faith claim, but rather seeks relief for breach of contract,” the insurer’s claims file documents are not discoverable.

In this case, where the plaintiff was alleging breach of contract and not bad faith, the appellate division determined that the trial court erred in ordering the insurer to produce the documents and therefore quashed the trials court’s order.