STEVE STATON AND WEST AMERICAN INSURANCE COMPANY, PETITIONERS,
v.
ALLIED CHAIN LINK FENCE COMPANY, RESPONDENT

Fla. 2d DCA | 1982-08-18
No. 81-2155
GRIMES and SCHOONOVER, JJ., concur.
418 So. 2d 404 Florida District Court of Appeal, Second District (1982)

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Synopsis

The Florida Court of Appeal reversed a discovery order seeking statements Staton made to his insurance company regarding fence installation specifications. The court held that communications between an insured and insurer made for the purpose of obtaining legal defense are protected by attorney-client privilege and not subject to discovery.


Holding

The court held that such communications are protected by attorney-client privilege and not discoverable. The court rejected Allied's arguments that the statements were protected only by the work product doctrine or fell within an impeachment exception, finding no basis in Florida law for either position.


Headnotes

[1] Communications between an insured and its insurer, made for the information and benefit of the attorney defending the insured, fall within the attorney-client privilege.

[2] Communications protected by the attorney-client privilege are generally not subject to discovery.

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Key Quotes

“the communications were made by Staton to his insurer for use by the latter in connection with fulfilling its obligation to defend on behalf of Staton. Under the law of Florida, such communications between an insured and its insurer made for the information and benefit of the attorney defending the insured fall within the attorney-client privilege and are not subject to discovery.”

Establishes the core holding that insured-to-insurer communications made for defense purposes are privileged.

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Facts & Procedural History

Kimberly Clark sued for injuries from falling into a chain link fence installed by Allied Chain Link Fence on property owned by Steve Staton. A key di…

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Opinion of the Court
OTT, Chief Judge.

OTT, Chief Judge.

By certiorari, the petitioners seek review of an order compelling discovery. We find that the statements sought to be discovered are protected by the attorney-client privilege; therefore, we quash the order compelling discovery.

Kimberly Clark, plaintiff below, filed an action for damages for personal injuries sustained when she fell into a chain link fence. Petitioners and respondent herein are defendants below; Steve Staton owns the property upon which the fence is located, West American Insurance Company is Staton’s insurer, and Allied Chain Link Fence installed the fence some twelve years ago. Staton and Allied have cross-claimed against each other seeking indemnity or contribution.

A major question in the case is whether Staton or Allied caused the fence to be installed with barbs in an upward position. The files and records of Allied dealing with the Staton installation had been destroyed in the normal course of business. Either the employees of Allied who took the Staton order and made the installation could not be identified, or the instruction of Staton with regard to the specification, if any, of barb direction could not be recalled independent of the records. Staton testified under oath that he never discussed the positioning of the barbs with Allied, but Allied challenged the truthfulness of this statement and moved to compel discovery of communications between Staton and a representative of West American limited to conversations Staton had with Allied when the fence was installed. Allied argues that the statements sought to be discovered are not within the ambit of the attorney-client privilege, being only protected by the work product doctrine. This doctrine protects materials prepared in anticipation of litigation. Allied further asserts that the statements fall within the impeachment exception to the work product doctrine. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Miami Transit Co. v. Hurns, 46 So. 2d 390 (Fla.1950).

Allied’s arguments are not persuasive. The record reveals that the communications were made by Staton to his insurer for use by the latter in connection with fulfilling its obligation to defend on behalf of Staton. Under the law of Florida, such communications between an insured and its insurer made for the information and benefit of the attorney defending the insured fall within the attorney-client privilege and are not subject to discovery. Vann v. State, 85 So. 2d 133 (Fla.1956); Grand Union Co. v. Patrick, 247 So. 2d 474 (Fla. 3d DCA 1971).

It concerns us that Staton might have testified under oáth that he never discussed the barbs with Allied, while telling the representative of West American another story. However, since the statement is protected by the attorney-client privilege, it is undiscoverable except in the rarest of circumstances. Affiliated of Florida, Inc. v. U-Need Sundries, Inc., 397 So. 2d 764 (Fla. 2d DCA 1981) (waiver); Anderson v. State, 297 So. 2d 871 (Fla. 2d DCA 1974) (contemplation of a crime or perpetration of a fraud).

The work product doctrine is something separate and apart from the attorney-client privilege. Hickman v. Taylor, 329 U.S. at 508, 67 S.Ct. at 392. We have not been made aware of any exception to the absolute privilege accorded attorney-client communications apart from those listed above. Neither have we been pointed to any decision that suggests a waiver might be implicit from Staton’s having put his statement in issue.

For the reasons stated, the order compelling discovery represents a departure from the essential requirements of law; therefore, certiorari is GRANTED and said order is QUASHED.

GRIMES and SCHOONOVER, JJ., concur.


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