ALLSTATE INSURANCE COMPANY, PETITIONER,
v.
ARTHUR RUSSELL SWANSON, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTINA ANN SWANSON, RESPONDENT
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Allstate Insurance Company sought certiorari review of a discovery order compelling disclosure of its entire claim file, including privileged materials and work product. The Florida Fifth District Court of Appeal quashed the discovery order, holding that because the plaintiff's bad faith claim was combined with an unresolved coverage dispute, the plaintiff could not compel disclosure of privileged materials until the right of coverage was first established.
The court held that a plaintiff cannot compel disclosure of privileged materials and work product from an insurance company's claim file when the bad faith claim is combined with an unresolved coverage dispute. Discovery of the complete claim file is only available in pure bad faith suits where coverage has already been established or is not disputed; when coverage is disputed, the suit is analogous to a first-party coverage claim and privileged materials are protected until coverage is proven.
[1] A plaintiff cannot compel disclosure of an insurer's privileged materials in its claims file until the right of coverage is first established.
[2] In a bad faith suit against an insurer, a plaintiff may obtain discovery of the insurer's complete original claim file, including work product and privileged matters, if…
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Join FLexlaw to unlock all legal intelligence“In a bad faith suit against an insurance company for failure to settle within the policy limits, a plaintiff may obtain discovery of the insurer's complete original claim file, including work product and privileged matters.”
Establishes the general rule allowing discovery in pure bad faith cases
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Join FLexlaw to unlock all legal intelligenceChristina Swanson drowned in a swimming pool while in the care of William and Pamela Lord. Allstate had issued a homeowner's policy to the pool's owne…
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SHARP, Judge.
Allstate Insurance Company seeks certiorari review of an order compelling discovery of its entire claim file, including work product and privileged matters. We have jurisdiction, Fla.R.App.P. 9.030(b)(2)(A), and we issue a writ quashing the discovery order on the grounds that the trial court departed from the essential requirements of law in compelling disclosure of privileged materials.1 This matter commenced with a wrongful death action against William and Pamela Lord by Arthur Swanson, as personal representative of his child, Christina, who drowned in a swimming pool while in the care and custody of the Lords. Allstate had issued a homeowner’s policy to Homer and Grace Taylor, who owned the premises where the pool is located, but Allstate denied any coverage for the Lords, and refused to defend the wrongful death action against the Lords.
The Lords assigned any cause of action they might have had against Allstate to Swanson. Swanson’s present suit against Allstate sought to establish a breach of contract to provide coverage to the Lords, estoppel, and a bad faith claim for failure to settle within the policy limits. However, when the discovery order was entered there was no determination in this suit (or in the prior wrongful death action) that coverage for the Lords existed under Allstate’s policy.
In a bad faith suit against an insurance company for failure to settle within the policy limits, a plaintiff may obtain discovery of the insurer’s complete original claim file, including work product and privileged matters. See Stone v. Travelers Insurance Company, 326 So. 2d 241 (Fla. 3rd DCA 1976). However, if the suit is simply to establish a right of recovery, the plaintiff cannot compel disclosure of privileged matters. See Allstate Insurance Company v. Podhurst, 491 So. 2d 1222 (Fla. 4th DCA 1986), Agri-Business, Inc. v. Bridges, 397 So. 2d 394 (Fla. 1st DCA), review denied, 407 So. 2d 1102 (Fla. 1981). The rationale for this distinction is that a claim for bad faith will lie when a carrier fails to properly perform its fiduciary duty to defend, but a claim for bad faith cannot be prosecuted when the parties simply disagree over the coverage issue. In such a case, the insurance company does not commit a separate tort by refusing to pay the claim. See U.S. Fire Insurance Company v. Clearwater Oaks Bank, 421 So. 2d 783 (Fla. 2d DCA 1982).
Where, as in this case, the issue of coverage is combined with the issue of bad faith, the same result should follow. Swanson, stepping by assignment into the shoes of the claimed insureds, has no more right to discovery in bringing the bad faith claim than did the Lords. This situation is analogous to a “first party” claim for coverage. Until the right of coverage is first established, a plaintiff claiming to be an insured cannot compel disclosure of the insurer’s work product and privileged matters in its claims file. See Travelers Insurance Company v. Habelow, 405 So. 2d 1361 (Fla. 5th DCA 1981); Allstate Insurance Company v. Shupack, 335 So. 2d 620 (Fla. 3rd DCA 1976). Otherwise, the discovery rule established by the courts in these cases could be circumvented by simply combining the two causes of action. Accordingly, we issue the writ and quash the discovery order. WRIT ISSUED.
DAUKSCH and COWART, JJ., concur. . See Powell v. Wingard, 402 So. 2d 532 (Fla. 5th DCA 1981).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Fid. & Cas. Ins. Co. of N.Y. v. Taylor, 525 So. 2d 908 (Fla. 3d DCA 1987)…client privilege for communications pertaining to such bad faith dealing seems clearly inappropriate.”); In re Bergeson, 112 F.R.D. 692 (D.Mont.1986); Gibson v. Western Fire Ins. Co., — Mont. —, 682 P. 2d 725 (1984). . Allstate Ins. Co. v. Swanson, 506 So. 2d 497 (Fla. 5th DCA 1987), is not to the contrary. Although the court quashed an order requiring production of the claim file, it did so only because, unlike this case, the issue of whether the carrier provided coverage vel non remained unresolved. See al…
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State Farm Mut. Auto. Ins. Co. v. Peters, 611 So. 2d 597 (Fla. 2d DCA 1993)…ent file. We deny the petition insofar as it concerns documents, investigative files or claims manuals prepared or generated by State Farm relating to the initial claim up until the judgment (the prejudgment file). See Allstate Ins. Co. v. Swanson, 506 So. 2d 497 (Fla. 5th DCA 1987); Stone v. Travelers Ins. Co., 326 So. 2d 241 (Fla. 3d DCA 1976). State Farm will believe they are the victims of inconsistent rulings because the trial court denied them production of the Peter’s prejudgment file and this court d…
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Superior Ins. Co. v. Holden, 642 So. 2d 1139 (Fla. 4th DCA 1994)…e order compelling disclosure of its claims file is premature because the issue of Superior’s obligation to provide coverage has not yet been determined. Balboa Ins. Co. v. Vanscooter, 526 So. 2d 779 (Fla. 2d DCA 1988); Allstate Ins. Co. v. Swanson, 506 So. 2d 497 (Fla. 5th DCA 1987); Allstate Ins. Co. v. Shupack, 335 So. 2d 620 (Fla. 3d DCA 1976). If the question of coverage were not at issue, the Hol-dens would be entitled to discovery of the original claims file in this third party bad faith action against…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brainard Stone and Beulah Stone v. Travelers Ins. Co., 326 So. 2d 241 (Fla. 3d DCA 1976)
- United States Fire Ins. Co. v. Clearwater Oaks Bank, 421 So. 2d 783 (Fla. 2d DCA 1982)
- Lach v. Lach, 335 So. 2d 620 (Fla. 3d DCA 1976)
- Agri-Business, Inc. v. Bridges, 397 So. 2d 394 (Fla. 1st DCA 1981)
- Travelers Ins. Co. v. Habelow, 405 So. 2d 1361 (Fla. 5th DCA 1981)
- Am. Cas. Co. OF Reading PA. v. Brim's Food, Inc., 402 So. 2d 532 (Fla. 3d DCA 1981)
- Powell v. Wingard, 402 So. 2d 532 (Fla. 5th DCA 1981)
- Allstate Ins. Co. v. Murray Podhurst, 491 So. 2d 1222 (Fla. 4th DCA 1986)