CONTINENTAL CASUALTY COMPANY, PETITIONER,
v.
AQUA JET FILTER SYSTEMS, INC., RESPONDENT
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Continental Casualty sought to prevent disclosure of litigation files prepared by the insured's law firm in a third-party bad faith action. The court held that a plaintiff in a bad faith action against an insurer for failure to settle is entitled to discovery of the insured's counsel's litigation files, as the plaintiff stands in the same posture as the insured.
The plaintiff in a third-party bad faith action against an insurance company for failure to settle is entitled to the entire litigation file of the insured's counsel, as the plaintiff stands in the same posture as the insured and is therefore entitled to discovery. The attorney-client and work product privileges do not preclude production of the files in this context.
[1] In a third-party bad faith action against an insurance company for failure to settle a claim within policy limits, a plaintiff is entitled to discover the insured's couns…
[2] A plaintiff in a third-party bad faith action against an insurer stands in the same posture as the insured and is therefore entitled to discovery of the insured's counsel…
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Join FLexlaw to unlock all legal intelligence“the plaintiff in a third party bad faith action against an insurance company for failure to settle the claim for policy limits is entitled to the entire litigation file of the insured's counsel from the inception of the lawsuit until the date that the judgment was entered in the underlying action”
Establishes the core holding that third-party bad faith plaintiffs have broad discovery rights to the insured's counsel's litigation files.
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Join FLexlaw to unlock all legal intelligenceAqua Jet recovered a judgment against Broome & Farina, Inc. (Continental's insured) exceeding Continental's policy limits by approximately $200,000. A…
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PER CURIAM.
Continental Casualty Co. [Continental] petitions this court for a writ of certiorari to review an order compelling discovery. We deny the petition.
Aqua Jet Filter Systems, Inc. [Aqua Jet] sought to obtain the litigation files prepared by the law firm of Kubicki, Draper, Gallagher & McGrane [Kubicki Draper] during the underlying litigation. In response, Kubicki Draper and Continental alleged that the files were privileged. The trial court overruled the claims of privilege and ordered Kubicki Draper to produce the litigation file. Continental appealed from this order. The sole issue in this case is whether Aqua Jet is entitled to obtain the litigation files of the law firm of Kubicki Draper, which provided representation to Broome & Farina, Inc., Continental’s insured, in the underlying litigation with Aqua Jet. Aqua Jet recovered a judgment against Broome & Farina in an amount exceeding policy limits by approximately $200,000. Aqua Jet then filed a third party bad faith action against Continental for its failure to settle Aqua Jet’s claim within policy limits.
This court has previously addressed this same issue in both Stone v. Travelers Ins. Co., 326 So. 2d 241 (Fla. 3d DCA 1976), and Boston Old Colony Ins. Co. v. Gutierrez, 325 So. 2d 416 (Fla. 3d DCA), cert. denied, 336 So. 2d 599 (Fla.1976). In both of these cases, this court held that the plaintiff in a third party bad faith action against an insurance company for failure to settle the claim for policy limits is entitled to the entire litigation file of the insured’s counsel from the inception of the lawsuit until the date that the judgment was entered in the underlying action. Stone, 326 So. 2d at 243; Gutierrez, 325 So. 2d at 417. In both cases, the court reasoned that the plaintiff stands in the same posture as the insured and is, therefore, entitled to discovery. Id. Moreover, Continental’s reliance on Kujawa v. Manhattan Nat’l Life Ins. Co., 541 So. 2d 1168 (Fla.1989) is misplaced since that decision pertained to a first party bad faith action.
For the foregoing reasons, we find that the trial court correctly ruled that Aqua Jet had the right to obtain Kubicki Draper’s litigation files where the attorney-client and work product privileges do not preclude production of the files in a third party bad faith context. Additionally, we find that Aqua Jet is not entitled to attorney’s fees and costs incurred in responding to the petition for certiorari where the issues raised by Continental were not frivolous.
Petition for a writ of certiorari is denied; motion for attorney’s fees denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)…the attorneys, since both he (Brown) and Boston Old Colony were their clients, Gutierrez has the same right of discovery in furtherance of the preparation of his case. 315 So. 2d at 417; see also Continental Cas. Co. v. Aqua Jet Filter Sys., Inc., 620 So. 2d 1141, 1142 (Fla. 3d DCA 1993); Koken v. Am. Serv. Mut. Ins. Co., 330 So. 2d 805, 806 (Fla. 3d DCA 1976). By contrast, the rule permitting discovery of materials contained in claim type files in third-party bad faith actions has not been consistently app…
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Dunn v. Nat'l Sec. Fire & Cas. Co., 631 So. 2d 1103 (Fla. 5th DCA 1993)…hin the policy limits, all materials in the insurance company’s claim file up to the date the judgment in the underlying suit are obtainable, and should be produced when sought by discovery. Continental Casualty Co. v. Aqua Jet Filter Systems, Inc., 620 So. 2d 1141 (Fla. 3d DCA 1993); U.S. Fire Insurance Co. v. Clearwater Oaks Bank, 421 So. 2d 783 (Fla. 2d DCA 1982); Aaron v. Allstate Insurance Co., 559 So. 2d 275 (Fla. 4th DCA), rev. denied, 569 So. 2d 1278 (Fla.1990); Koken v. American Service Mutual Insuran…
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Allstate Indem. Co. v. Ruiz, 780 So. 2d 239 (Fla. 4th DCA 2001)…§ 90.502, Fla.Stat., Fla.R.Civ.P. 1.280(b)(3); Am. States Ins. Co. v. Kransco, 641 So. 2d 175 (Fla. 5th DCA 1994). The analysis differs however when an insurance company is sued for bad faith. See Continental Cas. Co. v. Aqua Jet Filter Sys., Inc., 620 So. 2d 1141 (Fla. 3d DCA 1993); Kujawa v. Manhattan Nat’l Life Ins. Co., 541 So. 2d 1168 (Fla.1989). The production at issue has been filed under seal. We find no error with the order requiring Allstate to produce: (1) Cobb’s statement of January 7, 1997; (2)…
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
- Penelope R. Kujawa v. Manhattan Nat'l Life Ins. Co., 541 So. 2d 1168 (Fla. 1989)
- Brainard Stone and Beulah 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 1976)