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Florida Second DCA denies plaintiff’s request for property insurer’s claim file in dispute with insurer over denial of property damage claim, finds work product privilege applies due to prospect of litigation even though no litigation ever occurred on that claim

On February 7, 2020, in Progressive American Insurance Company v. Herzoff, No. 2D19-2342, the Florida Second DCA quashed a discovery order entered by the trial court which had required an insurance company defendant to turn over a claim file regarding a 2015 property insurance claim made by the plaintiff for damages to his boat. The plaintiff was involved in a lawsuit with the insurer about water damage to his boat in a later incident and in the course of discovery over that claim demanded that the insurer produce the 2015 claim file. The trial court granted the discovery request over the defendant’s objection based on work product privilege. The defendant then appealed, seeking a writ of certiorari from the Second DCA, which first addressed the standard for certiorari review of a discovery order. The Second DCA concluded that in a situation such as this involving the potential production or privileged materials, a writ of certiorari will be issued if the trial court’s ruling constitutes a departure from the essential requirements of the law, citing Allen v. State Farm Fla. Ins. Co., 198 So. 3d 871, 873 (Fla. 2d DCA 2016). The Court stated that a work product claim may be overcome by 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, citing CSX Transp. Inc. v. Carpenter, 725 So. 2d 434, 435 (Fla. 2d DCA 1999) and Fla. R. Civ. P, 1.280(b). However, the Second DCA noted that this was not the analysis employed by the trial court, which instead appeared to have adopted the view that the materials in the insurer’s claim file for the previous claim could not be work product since the previous claim was settled without litigation. The Second DCA disagreed, approvingly citing a Fifth DCA decision, State Farm Fla. Ins. Co. v. Marascuillo, 161 So. 3d 493 (Fla. 5th DCA 2014), which held that the proper test is whether the document can fairly be said to have been prepared or obtained because of the prospect of litigation.

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