Avatar Property & Casualty Ins. Co. v. Mitchell

By: Jennifer N. Myers

2021 WL 112751 (3d DCA Jan. 13, 2021)

The issue was whether an insured could require discovery of materials in an insurer’s claim file during the pendency of the breach-of-contract action. In a request for production of documents, the insured sought “[a]ll documents containing information regarding a statement by [Mitchell] at any time during [Avatar’s] handling of [Mitchell’s] loss, including adjuster notes, claim reports, interoffice memorandum, tape recordings and any transcripts or written statements from [Mitchell].” The dispute centered on whether the insurer needed to disclose work from the insurer’s adjuster assigned to inspect the loss, specifically a “post-loss report” and photographs of the residence, including the interior and exterior, with “recorded observations on each of the photographs.” The Trial Court ordered production of the materials and the insurer petitioned for certiorari review, claiming the production would cause irreparable harm during the pending litigation.

The Appellate Court started by holding that discovery of the material, if improper, would cause irreparable harm and, thus, the petition was appropriate. Such materials would constitute discovery of “cat out of the bag” material that the Court should prevent from disclosure.

On the merits, the Appellate Court reversed the Trial Court based upon the application of the Work-Product Doctrine. This doctrine was originally developed by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947), to prevent “unwarranted inquires into the files and mental impressions of an attorney.”  Id. at 510. Florida Rule of Civil Procedure 1.280(b)(4), which codifies the Work-Product Doctrine, “provides a party may only obtain materials prepared in anticipation of litigation, ‘upon a showing that the party seeking discovery has need of the materials in preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’” This Rule “has been broadly construed to encompass those “‘investigative materials if such materials were compiled in response to some event which foreseeably could be made the basis of a claim.’ Fireman’s Fund Ins. Co. v. Signorelli, 681 So. 2d 729, 721 (Fla. 2d DCA 1996) …” In this dispute, the materials were subject to the Work-Product Doctrine because the insured “retained a loss consultant and lodged a claim.”

The Appellate Court then held that the insured did not meet the requisite showing of need, specifically that the insured “made no showing below of those exceptional circumstances required to justify compelled disclosure.” Last, the materials would remain protected during the pendency of the underlying coverage dispute. The Appellate Court held that, “as liability for coverage remains in dispute, the report, housed within the claim file, is irrelevant, hence not yet ‘otherwise discoverable’ within the meaning of Florida Rule of Civil procedure 1.280(b)(4).”

The Trial Court was reversed and the claim-file materials were protected from discovery.

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