TRAVELERS INSURANCE COMPANY, AN INSURANCE CORPORATION, PETITIONER,
v.
LILLIAN HABELOW, INDIVIDUALLY AND AS GUARDIAN ON BEHALF OF BENJAMIN HABELOW, INCOMPETENT, RESPONDENT
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The Florida District Court of Appeal granted certiorari, quashing a discovery order that compelled an insurance company to produce its attorney-client communications within a workers' compensation claim file. The court distinguished this adversarial contract dispute from cases where an attorney represents both the insurer and the insured.
Yes, the attorney-client privilege protects communications within an insurance company's workers' compensation claim file when the insurer and claimant are in an adversarial contract dispute. The trial court erred in ordering the production of these communications.
“Here, the petitioner and the respondent are in an adversarial contract dispute.”
Establishes the nature of the relationship between the parties, distinguishing it from cases with a fiduciary duty.
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Join FLexlaw to unlock all legal intelligenceTravelers Insurance Company sought to quash a circuit court discovery order compelling it to produce its entire workers' compensation claim file, incl…
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COBB, Judge.
The petitioner, Travelers, seeks common-law certiorari to the Orange County Circuit Court, which rendered an order on July 6, 1981, directing the petitioner to produce for inspection by the claimant below all matters contained in its workmen’s compensation claim file, including attorney-client communications. Travelers asks that this discovery order be quashed insofar as it encompasses such communications, relying on Skorman v. Hovnanian of Fla., Inc., 382 So. 2d 1876 (Fla. 4th DCA 1980), and Roberts v. Jardine, 366 So. 2d 124 (Fla. 2d DCA 1979). See also § 90.502, Fla. Stat. (1979).
The trial court’s order apparently was predicated on Stone v. Travelers Insurance Company, 326 So. 2d 241 (Fla.3d DCA 1976), a “bad faith” case. This reliance was misplaced because in defending a personal injury action on behalf of its insured, as in Stone, the attorney for the carrier is also the attorney for the insured and a fiduciary relationship exists which is not present in the instant situation. Cf. Baxter v. Royal Indemnity Co., 285 So. 2d 652 (Fla. 1st DCA 1973), cert. discharged, 317 So. 2d 725 (Fla. 1975). Here, the petitioner and the respondent are in an adversarial contract dispute.
The respondent also asserts that the attorney-client privilege has been waived by the petitioner. This argument was not presented to the trial court and was not the basis for that court’s ruling. Moreover, the record before us does not support this argument.
Accordingly, we grant the petition and herewith quash the discovery order entered by the trial court on July 6,1981, insofar as it encompasses attorney-client communications. See West Volusia Hosp. Authority v. Williams, 308 So. 2d 634 (Fla. 1st DCA 1975).
FRANK D. UPCHURCH, Jr., concurs.
DAUKSCH, C. J., dissents with opinion.
DAUKSCH, Chief Judge,
dissenting:
I respectfully dissent. The operative paragraph of the trial court order as it reads in its entirety is as follows:
2. Plaintiffs’ Request to Produce any and all claims files from either the home, branch, or district office pertaining to the workmen’s compensation claim of Plaintiff, Benjamin Habelow, and production of any and all investigative, correspondence, or payment files and any and all other files which pertain to the Plaintiffs’ workmen’s compensation claim, is hereby granted and defendant has 7 days to comply- Because the order of the trial judge does not require the production of attorney-client communications and because the defendant never objected to the production of the discovery matters specifically on the basis of attorney-client privilege, I suggest we should not take jurisdiction in certiorari.
Thus, whether or not this case is anala-gous to a “bad-faith” case is not a question for us to decide. We should decide it only after the question is first and squarely put before and decided by the trial court upon proper objection by the defendant.
I would deny certiorari.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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E. Colonial Refuse Serv., Inc. v. Velocci, 416 So. 2d 1276 (Fla. 5th DCA 1982)…. DAUKSCH, J., concurs specially with opinion. . Due to the irreparable harm involved when an order impermissibly grants discovery of a nondiscoverable item, common law certiorari is an appropriate remedy. See, e.g., Travelers Ins. Co. v. Habelow, 405 So. 2d 1361 (Fla. 5th DCA 1981); Palmer v. Servis, 393 So. 2d 653 (Fla. 5th DCA 1981). See generally W. Haddad, The Common Law Writ of Certiorari in Florida, 49 U.Fla.L.Rev. 207, 220 (1977). . See, e.g., Central Florida Skates, Inc. v. Thomas, 393 So. 2d 1200…
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Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987)…flicting decision in Florida Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985), which appears in the August 1985 issue of the Journal of the Academy of Florida Trial Lawyers at 11-12. See also Travelers Insurance Company v. Habelow, 405 So. 2d 1361 (Fla. 5th DCA 1981), and Agri-Business, Inc. v. Bridges, 397 So. 2d 394 (Fla. 1st DCA 1981).…
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Indus. Tractor Co. v. Bartlett, 454 So. 2d 1067 (Fla. 5th DCA 1984)…because of the irreparable harm involved when an order impermissibly grants discovery of a non-discoverable item. See, e.g., East Colonial Refuse Service, Inc. v. Velocci, 416 So. 2d 1276 (Fla. 5th DCA 1982); Travelers Insurance Company v. Habelow, 405 So. 2d 1361 (Fla. 5th DCA 1981). However, it is generally held that certiorari may not be utilized to review orders which deny discovery because such orders, if in error, can be rectified upon plenary appeal. See, e.g., Esman v. Board of Regents, 425 So. 2d 156…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Foy Baxter and Annie Smith Baxter v. Royal Indem. Co., 285 So. 2d 652 (Fla. 1st DCA 1973)
- Foy Baxter and Annie Smith Baxter v. Royal Indem. Co., 317 So. 2d 725 (Fla. 1975)
- Brainard Stone and Beulah Stone v. Travelers Ins. Co., 326 So. 2d 241 (Fla. 3d DCA 1976)
- D'Amato v. State, 308 So. 2d 634 (Fla. 1st DCA 1975)
- Skorman v. Hovnanian OF Fla., Inc., 382 So. 2d 1376 (Fla. 4th DCA 1980)
- State v. Barker, 366 So. 2d 124 (Fla. 2d DCA 1979)
- Roberts v. Jardine, 366 So. 2d 124 (Fla. 2d DCA 1979)