COTTON STATES MUTUAL INSURANCE COMPANY, PETITIONER,
v.
TURTLE REEF ASSOCIATES, INC. A FLORIDA CORPORATION, RESPONDENT
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Cotton States Mutual Insurance Company sought review of an order requiring disclosure of an insurance investigator's file. The Fourth District Court of Appeal held that work product privilege requires materials to be prepared in anticipation of litigation, not merely in the ordinary course of business, and remanded for in-camera inspection to determine if the investigator's file met this standard.
Work product privilege attaches only to materials prepared in contemplation of litigation, not merely those prepared in the ordinary course of business. The case was remanded to the trial court for in-camera inspection of Webb's file to determine whether it was prepared in anticipation of litigation or in the ordinary course of claims investigation.
[1] The work product privilege attaches to materials prepared by a party's investigator or insurer only if those materials were prepared in contemplation of litigation.
[2] Mere likelihood of litigation does not satisfy the qualification for the work product privilege.
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Join FLexlaw to unlock all legal intelligence“The work product privilege attaches to statements and materials prepared by a party's investigator or insurer only if these were prepared in contemplation of litigation.”
Establishes the foundational requirement for work product protection—materials must be prepared with litigation in mind, not merely in the ordinary course of business.
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Join FLexlaw to unlock all legal intelligenceCotton States retained independent claims investigator Donald D. Webb to investigate Turtle Reef Associates' insurance claim. Turtle Reef moved to com…
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GLICKSTEIN, Judge.
By petition for writ of certiorari, Cotton States Mutual Insurance Company seeks review of a non-final order granting respondent Turtle Reef Associates, Inc.’s motion to compel production of the contents of an independent insurance investigator’s file compiled during his investigation of Turtle Reef’s claim. Cotton States contends the contents of the file are work product and therefore privileged.
The work product privilege attaches to statements and materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation. See Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981); Shawmut Van Lines, Inc. v. Small, 148 So. 2d 556 (Fla. 3d DCA 1963). Mere likelihood of litigation does not satisfy this qualification. Because the applicable rule, Florida Rule of Civil Procedure 1.280(b)(2), closely resembles Federal Rule of Civil Procedure 26(b)(3), we look to federal case law for guidance.
In United States v. El Paso Company, 682 F. 2d 530, 542 (5th Cir.1982), the court of appeals drew attention to the advisory committee note to the federal rule, which states materials assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation are excluded from work product. In Carver v. Allstate Insurance Company, 94 F.R.D. 131 (S.D.Ga.1982), it is stated that an insurance company’s claims investigation in its early stages is conducted in the ordinary course of business; the object is to determine whether to honor the claim or resist it, and whether to seek subrogation against a third party. In Carver, reports produced early on by a claims representative were not privileged, whereas subsequent reports of a senior claims representative, assigned when it was established the extent of loss was great and when arson was suspected, were privileged because they were prepared in anticipation of litigation.
Here Cotton States retained an independent claims investigator, Donald D. Webb, to investigate Turtle Reef’s claim. The trial judge cannot recall whether, when, he heard Turtle Reef’s motion to compel, he inspected the file Webb had compiled. Although Webb’s description of his file’s contents, given at deposition, suggests his investigation was of the preliminary kind that insurance company’s conduct in the ordinary course of business, we are not prepared to make this determination sight unseen. Accordingly we remand to the trial court so that the contents of Webb’s file may be inspected and a determination made consonant with the federal case law cited herein.
ANSTEAD, C.J., and WALDEN, J., concur.
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Cited By (31 total)
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Procter & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985)…requirements unrelated to litigation, or at a time when the “mere likelihood” of litigation exists are not entitled to protection from discovery under the work product doctrine. See Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So. 2d 595 (Fla. 4th DCA 1984). We hold that scientific or other technical documents or tangible things prepared in anticipation of litigation or for trial by or for a party or by or for that party’s representative are not disqualified from constituting a part…
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Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987)…in a different manner — for the benefit of both the parties and the system. Finally, the discovery order does not conform with a series of recent decisions from this court. See Cotton States Mutual Insurance Company v. Turtle Reef Associates, Inc., 444 So. 2d 595 (Fla. 4th DCA 1984), and Selected Risks Insurance Company v. White, 447 So. 2d 455 (Fla. 4th DCA 1984). See also Airocar, Inc. v. Goldman, 474 So. 2d 269 (Fla. 4th DCA 1985). See the discussion of that case and Turtle Reef vis a vis the conflictin…
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Fla. Cypress Gardens, Inc. v. Murphy, 471 So. 2d 203 (Fla. 2d DCA 1985)…excluding correspondence with its attorney. Cypress Gardens objected to the production of these items, and the Murphys filed a motion to compel. Following the procedure outlined in Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So. 2d 595 (Fla. 4th DCA 1984), the court directed Cypress Gardens to file an affidavit setting forth dates when the items subject to the request for discovery were obtained and the purpose for which they were obtained. Cypress Gardens filed an affidavit of th…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States & Revenue Agents Clarence H. Isabel & John S. Reid of the Internal Revenue Serv. v. The EL Paso Co., 682 F.2d 530 (5th Cir. 1982)
- Alachua Gen. Hosp., Inc. v. Zimmer USA, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981)
- Shawmut van Lines, Inc. v. Small, 148 So. 2d 556 (Fla. 3d DCA 1963)