FORTUNE INSURANCE COMPANY, PETITIONER,
v.
LAUREN P. GREENE, AS TRUSTEE OF THE BANKRUPTCY ESTATE OF ALBERT CLINTON LEAVITT, JR., RESPONDENT
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Fortune Insurance Company sought certiorari review of a trial court order compelling production of documents it claimed were protected by attorney-client privilege and work product doctrine in a bad faith insurance claim. The appellate court granted the petition in part, holding that while documents generated before coverage was established are not protected, documents created to defend the bad faith claim itself are exempt from discovery.
Documents generated before coverage is established are not protected from discovery because the insurer's fiduciary relationship with the insured dates back to when the claim is made. However, attorney-client communications and work product documents generated specifically to assist in defending the bad faith claim are exempt from discovery.
[1] An insurer's fiduciary relationship with an insured dates back to the time the claim is made when coverage is established through a declaratory judgment action.
[2] Attorney-client communications and work product documents generated to assist in an insurer's defense of a bad faith claim are exempt from discovery.
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Join FLexlaw to unlock all legal intelligence“When coverage is established through a declaratory judgment action, the insurer's fiduciary relationship with the insured dates back to the time the claim is made.”
Establishes that the fiduciary duty arises from the claim date, not the coverage judgment date, limiting the scope of privilege protection for pre-coverage documents.
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Join FLexlaw to unlock all legal intelligenceAlbert Leavitt was involved in an automobile accident and sued. His insurer, Fortune, defended him after losing a declaratory judgment action on cover…
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PER CURIAM.
Fortune Insurance Company (Fortune) seeks certiorari review of a trial court order requiring it to produce documents that it alleges are protected by the attorney-client privilege and/or the work product doctrine. Because a portion of the documents that Fortune was directed to produce are shielded from discovery, the petition for writ of certiorari is granted in part and denied in part.
The respondent, Lauren P. Greene, is the plaintiff in the action below and the trustee of the bankruptcy estate of the insured, Albert Leavitt. Leavitt was in an automobile accident and was sued as a result of the accident. His insurer, Fortune, defended the suit after an adverse judgment in a declaratory judgment action filed by Fortune to determine coverage.
Leavitt suffered an adverse judgment in excess of the policy limits. He then sued Fortune for bad faith in investigating and handling the claim, failure to admit coverage, failure to attempt to settle competing claims within policy limits, and failure to communicate with Leavitt concerning settlement opportunities and the possibility of an excess judgment. Fortune objected to document requests which included, according to Fortune, documents protected by the attorney-client privilege and/or the work product doctrine. Fortune submitted the documents to the trial court for in-camera inspection, and the court compelled the production of the disputed documents.
Fortune incorrectly asserts that documents generated before coverage was established are protected. When coverage is established through a declaratory judgment action, the insurer’s fiduciary relationship with the insured dates back to the time the claim is made. See General Accident Fire & Life Ins. Corp., Ltd. v. Boudreau, 658 So. 2d 1006 (Fla. 5th DCA 1994). Fortune is correct that attorney-client communications and work product documents generated to assist in its defense of the bad faith claim are exempt from discovery. See United Servs. Auto. Ass’n v. Jennings, 731 So. 2d 1258, 1260 (Fla.1999). Consequently, the trial court is directed to reexamine the disputed documents in-camera and remove those documents which fall into the latter category.
Petition granted in part and denied in part.
BLUE, A.C.J., and FULMER and WHATLEY, JJ„ Concur.
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Citator
Cited By
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State Farm Mut. Auto. Ins. Co. v. Kendrick, 780 So. 2d 231 (Fla. 3d DCA 2001)…n); see also Perry v. State, 513 So. 2d 254 (Fla. 2d DCA 1987). Here, the proper procedure is for the trial court to examine the disputed documents in-camera and remove those documents which fall into the privileged category. See Fortune v. Greene, 775 So. 2d 338 (Fla. 2nd DCA 2000); United Service Auto. Ass’n v. Crews, 614 So. 2d 1213 (Fla. 4th DCA 1993)(concluding trial court would be required to hold in-camera review of documents, to ascertain which ones were subject to attorney-client privilege). It foll…
Authorities Cited
- United Servs. Auto. Ass'n v. Jennings, 731 So. 2d 1258 (Fla. 1999)
- First Health Care Corp. v. Margarita Borrego Morgado for Angel Borrego, 658 So. 2d 1006 (Fla. 2d DCA 1993)