Work Product Privilege for Claims Handling Material

By Joseph A. Kovecses, Jr., Esq.

Florida’s Second District Court of Appeal recently issued an opinion affirming and explaining the context in which claim file documents are privileged and protected from discovery in Avatar Property & Casualty Insurance Company v. Niulsury S. Flores and Ernesto Valdes.[1]

The underlying dispute involved a Hurricane Irma property damage claim in which the insurer opened coverage for a portion of the loss, but disputed the total amount due.[2]  The insureds sought discovery of various claim file documents.[3]  The trial court ordered production of the documents over the insurer’s objection on a finding that the case was merely a scope and pricing dispute in which coverage was not at issue.[4]

On appeal, the Second District quashed the discovery order finding that although the insurer admitted some coverage existed under the policy, the fact that the amount and nature of that coverage remained in dispute required work product protection of the claim file documents.[5]

The Court noted “that there is no privilege under Florida law that automatically attaches to ‘claim file’ material.”[6]  However, the Court explained that the contents of an insurer’s claim file is privileged as work product when the issue of coverage is in dispute.[7]  The Court broadly defined work product to include documents prepared or obtained because of the “prospect of litigation.”[8]  Importantly, the Court found that “even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a [legal] claim.”[9]  Thus, “Florida courts routinely hold that materials generated during an insurer’s investigation of a claim for coverage constitute protected work product.”[10]

The privilege applies to scope and pricing cases as well as cases involving full denials of coverage because “regardless of the binary question of whether any coverage exists, the issue of coverage remains disputed for these purposes where the amount of coverage remains to be determined.”[11]  The Court noted that despite the insurer’s pre-suit payment, the insurer raised several affirmative defenses to coverage, including that the insureds breached their post-loss obligations under the insurance policy.[12]  Therefore, a pre-suit payment does not waive or nullify the work product privilege where the amount of additional coverage is in dispute, whether based on a policy’s scope of coverage, exclusions, or an insured’s failure to comply with post-loss conditions.[13]

[1] Avatar Prop. & Cas. Ins. Co. v. Flores, 2D20-2458, 2021 WL 1431118 (Fla. 2d DCA Apr. 16, 2021).

[2] Id. at *1.

[3] Id.

[4] Id.

[5] Id. at *3.

[6] Id. at *2.

[7] Id.

[8] Id.

[9] Id. (emphasis added).

[10] Id.

[11] Id. at *3 (emphasis added).

[12] Id.

[13] Id.

Importantly, the Court noted that the privilege extends to claim file materials for prior claims where prior litigation was already resolved and/or where litigation on the prior claims never materialized.[1]  Thus, for work product protection of claim file materials, the relevant time for “anticipation of litigation” starts when a loss is first reported to the insurer.[2]

The Second District only has jurisdiction over cases in select Florida counties, including Polk, Pasco, and Hillsborough Counties down to Collier County.  However, the opinion will be binding on all Florida trial courts to the extent there is no conflict with the law in the other appellate districts if it is selected for publication.  Navigating the distinction in discovery practice between the different districts requires sufficient knowledge and careful consideration of the issues in dispute.  The attorneys at Pearson Doyle Mohre & Pastis, LLP are skilled at navigating the issues of fact and law unique to each case.  We are happy to answer any questions you have on the case explained above or general discovery practice in Florida.

[1] Id.

[2] See id.