WISEMAN
v.
PROGRESSIVE PALOVERDE INSURANCE COMPANY
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The court held that attorney-client privilege does not preclude discovery of an insured's litigation file in a bad-faith action against an insurer.
Plaintiff sued his insurer for bad faith after an automobile accident. Plaintiff subpoenaed the underlying tortfeasor's attorneys for depositions and …
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(Doc. 34, p. 2). Attorney Sesler and Attorney Yates now request that the court quash or modify the subpoenas because they argue the requested information contains attorney-client privileged communications not subject to disclosure absent a waiver of that privilege by Mr. Rush. (Doc. 34). The parties oppose Attorney Sesler’s and Attorney Yates’s motion and argue the information requested is subject to discovery in a bad-faith action despite claims of privilege.1 (Doc. 35).
II. ANALYSIS
Because this is a diversity action, resolution of this claim of the attorney-client privilege requires application of Florida law. GAB Bus. Serv., Inc. v. Syndicate 627, 809 F. 2d 755, 762 (11th Cir. 1987) (“state law determines privilege when state law supplies rule of decision”). Florida courts have consistently held that the plaintiff in a third-party bad-faith action against an insurance company for failure to settle for policy limits is entitled to the entire litigation file of the insured’s counsel from the inception of the lawsuit until the date the judgment was entered in the underlying action. See Cont’l Cas. Co. v. Aqua Jet Filter Sys., Inc., 620 So. 2d 1141 (Fla. 3d DCA 1993); Stone v. Travelers Ins. Co., 326 So. 2d 241 (Fla. 3d DCA 1976); Boston Old Colony Ins. Co. v. Gutierrez, 325 So. 2d 416 (Fla. 3d DCA), cert. denied, 336 So. 2d 599 (Fla. 1976). The courts reasoned that the plaintiff stands in the same posture as the insured and is, therefore, entitled to full discovery. See Cont’l Cas. Co., 620 So. 2d at 1142. Therefore, attorney-client privilege does not preclude the requested communications.
III. CONCLUSION
Non-party Attorney Sesler’s and Attorney Yates’s motion to quash or modify subpoenas for deposition duces tecum (Doc. 34) is DENIED.
ORDERED in Tampa, Florida on February 22, 2023.
Aranda. Arno Sasone_
AMANDA ARNOLD SANSONE
United States Magistrate Judge
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Brainard Stone and Beulah Stone v. Travelers Ins. Co., 326 So. 2d 241 (Fla. 3d DCA 1976)
- GAB Bus. Servs., Inc. v. Syndicate 627, 809 F.2d 755 (11th Cir. 1987)
- Boston OLD Colony Ins. Co. v. Gutierrez, 325 So. 2d 416 (Fla. 3d DCA 1976)
- Cont'l Cas. Co. v. Aqua JET Filter Sys., Inc., 620 So. 2d 1141 (Fla. 3d DCA 1993)