People’s Trust Insurance Company v. Theodore R. Foster

By: David A. Mervine

2022 WL 221254
District Court of Appeals, First District, January 2022

This matter came before the Court on the Petitioner/Defendant insurer’s Petition for Writ of Certiorari quashing the trial Court’s Order compelling the production of underwriting manuals. The position of the insurer was that the manuals were undiscoverable in a breach of contract cases, like the present matter, until a bad faith action commences. The Respondent/insured’s position was that the manuals may be relevant to contesting the insured’s affirmative defense that the damage predated the policy inception.  The Court denied the Petition and allowed the motion compelling discovery to stand.

The Court approached its decision on the basis of whether or not the Writ should issue. The same would require the jurisdictional element that the Petitioner would suffer a material injury for the remainder of the case that cannot be corrected on appeal, and then relief is only available where the error complained of involves a clearly established principle of law, rather than a simple legal error. While acknowledging that erroneous discovery orders have been quashed, the Court noted that the underwriting or claim file privilege is not absolute outside of the bad faith context, especially where the materials requested are relevant. The court held that the Petitioner/Insurer was unable to show a violation of a clearly established principle of law. Accordingly, the Petition was denied and the insured was permitted to obtain the underwriting materials from the insurer.

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