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Florida Third DCA rules that trial court erred in ordering disclosure of work-product materials from insurance company’s claims file in first-party property insurance lawsuit

On January 13, 2021, in Avatar Property & Casualty Insurance Company v. Mitchell, No. 3D20-1515, the Florida Third DCA granted certiorari relief in a first-party property insurance lawsuit and quashed an order by the trial court requiring the disclosure of materials alleged by the defendant insurance company to constitute work product. The trial court had ordered disclosure of both an internal insurance company report and unredacted photographs taken by a field inspector.  The Third DCA concluded that the materials sought constituted work product materials because they were produced in the course of an investigation of whether the plaintiff’s property claim was subject to coverage, citing, inter alia, Fla. Power Corp. v. Dunn, 850 So. 2d 655, 656 (Fla. 2d DCA 2003) (noting photographs taken at accident scene were work-product), and Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905, 910 (Fla. 3d DCA 2004) (“In the insurance context, a document may be deemed to have been prepared in anticipation of coverage litigation if it was created after the insured tendered its claim for coverage; if it begins to appear that the insurer might deny coverage or reserve its rights; the insurer denies coverage; if coverage litigation appears imminent; or if coverage litigation commenced”). The Third DCA noted that to overcome the valid assertion of the work product privilege codified in Fla. R. Civ. P. 1.280(b)(4), the plaintiff was required to show that she “has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” The Third DCA concluded that the plaintiff had made no showing of the “exceptional circumstances” required to justify compelled disclosure. The Third DCA also concluded that the report was not yet discoverable because liability for the coverage still remained in dispute, citing inter alia Ill. Nat’l Ins. Co. v. Bolen, 997 So. 2d 1194, 1196 (Fla. 5th DCA 2008) (“[A]n insurer’s claims file . . . is not subject to discovery until the insurer’s obligation to provide coverage and benefits is determined”).