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Florida Second DCA rules that defendant insurance company in first-party bad faith action was not entitled to work product protection from production of case file, distinguishing discovery in bad faith action from discovery in underlying denial of benefits lawsuit

On June 30, 2021, in American Home Assurance Company Inc. v. Sebo, No. 2D20-2202, the Florida Second DCA denied the certiorari petition of an insurance company defendant in a first-party bad faith action. The plaintiff had sued the insurance company alleging a wrongful denial of benefits under a homeowner’s insurance policy and obtained a judgment against the insurer. The homeowner then brought this bad faith action against the insurer, during which the plaintiff served a request for production on the insurance company which sought an extensive list of documents relating to the denial of the claim, many of which were withheld by the insurance company based on the work product doctrine and the attorney-client privilege. The trial court concluded that the requested discovery items were not protected by the work product doctrine because they were needed to determine if the defendant acted in bad faith and ordered an in camera inspection of the documents to resolve the attorney-client privilege issues, prompting the certiorari petition by the defendant. The Second DCA agreed with the trial court, citing Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005) as holding that work product protection that may otherwise be afforded to documents prepared in anticipation of litigation of the underlying coverage dispute does not automatically operate to protect such documents from discovery in the ensuing, or accompanying, bad faith action.