LIBERTY MUTUAL FIRE INSURANCE COMPANY, PETITIONER,
v.
MARSHA HANSON AND HEATHER KINSEY, RESPONDENTS

Fla. 5th DCA | 2002-08-30
No. 5D02-1701
HARRIS and ORFINGER, R.B., JJ., concur.
824 So. 2d 1013 Florida District Court of Appeal, Fifth District (2002) Positive Treatment
Cited by 2 cases

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Synopsis

Liberty Mutual Fire Insurance Company sought certiorari review of a discovery order requiring disclosure of coverage opinions and lawsuit information related to the terms "resident" and "residence." The Florida Fifth District Court of Appeal held that the discovery order improperly required disclosure of attorney work-product and imposed an undue burden by requiring the insurer to perform discovery work that the insured could accomplish through alternative means.


Holding

The court held that the discovery order improperly required disclosure of protected work-product on its face and departed from the essential requirements of law. The court also held that the order requiring disclosure of lawsuit information departed from the essential requirements of law because the insured could obtain such information through the court system and alternative means without burdening the insurer.


Headnotes

[1] A discovery order requiring production of "coverage opinions which define resident, residence, and residency" may require disclosure of protected work-product.

[2] A party seeking discovery of documents that appear on their face to be privileged bears the burden of proving they are not privileged.

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Key Quotes

“when communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not”

Establishes the legal standard for work-product privilege claims in discovery disputes

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Facts & Procedural History

The insured Marsha Hanson and her daughter Heather Kinsey sued Liberty Mutual for uninsured motorist benefits after Kinsey was injured in an accident …

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Opinion of the Court
COBB, J.

COBB, J.

The petitioner, Liberty Mutual Fire Insurance Company (insurer), seeks certiorari review of a discovery order of the trial court asserting that the ordered discovery is unduly burdensome, seeks irrelevant information, and seeks information protected by the attorney-client and work-product privileges.

The respondents, Marsha Hanson (insured) and Heather Kinsey (Hanson’s daughter) filed suit against the insurer seeking uninsured motorist benefits under an insurance contract between the insured and insurer for injuries resulting from an automobile accident involving Heather Kinsey and an uninsured motorist. The insurer asserted in its answer that all conditions precedent to collect under the contract were not met. Specifically, the insurer alleged that Kinsey, at the time of the accident, was not an insured because she was not a “resident” in the insured’s Nevada household.

The insured filed a request for production asking that the insurer produce, inter alia:1

A. Copies of coverage opinions defining the terms “resident,” “residence” or “residency.”

B. Copies of any lawsuit where the insurer was sued or sought declaratory relief involving the terms “resident,” “residence” or “residing.”

The insurer objected to this discovery asserting these requests were unduly burdensome, over-broad and the documents were protected work-product and attorney-client communications. The insured filed a motion to compel.

The trial court granted in part the insured’s motion to compel discovery including:

2. Defendant (insurer) shall produce “copies of all coverage opinions which define resident, residence, and residing, other than those prepared by defense counsel for this case for a thirty (30) month period prior to this lawsuit, or length of time plaintiff (insured) has had insurance with the defendant, whichever is greater.”

3. Defendant shall produce “copies of any lawsuits wherein the defendant has been sued or has sued involving coverage questions relating to the term or meaning or resident, residence, and residency in Florida and Nevada for a thirty (30) day month period prior to this lawsuit or length of time plaintiff has had insurance with the defendant, whichever is greater.”

On June 7, 2002, the insurer filed the instant petition.

We hold that the portion of the order to produce “copies of all coverage opinions which define resident, residence, and residency ...” on its face requires the disclosure of protected work-product. See Shell Oil Co. v. Par Four Partnership, 638 So. 2d 1050 (Fla. 5th DGA 1994)(when communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not). See, e.g., Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240, 1243 (Fla. 5th DCA 2002). The trial court departed from the essential requirements of the law in ordering disclosure of this protected work-product.

As to that part of the order requiring disclosure of “copies of lawsuits where in the defendant has been sued ...” this information could be obtained by the insured through the court system. The insured has alternative means to obtain this information. Therefore, the trial court departed from the essential requirements of the law in ordering the insurer to do the insured’s leg work. See generally Fla. R. Civ. P. 1.280(b)(3) (party must demonstrate need and hardship to obtain trial preparation materials).

Accordingly, we grant the petition for writ of certiorari and quash the discovery order as it relates to the requests in question.

PETITION GRANTED; ORDER QUASHED.

HARRIS and ORFINGER, R.B., JJ., concur. . The insurer only challenges the order as it relales to these two requests.


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Citator

Cited By

  • Matlack v. DAY, 907 So. 2d 577 (Fla. 5th DCA 2005)
    …gh, the attorney-client privilege was not raised before the lower court, and unlike Hess, the discovery request did not specifically ask for attorney-client communications. See Hess, 814 So. 2d at 1243. See also Liberty Mut. Fire Ins. Co. v. Hanson, 824 So. 2d 1013 (Fla. 5th DCA 2002); Shell Oil Co. v. Par Four Partnership, 638 So. 2d 1050 (Fla. 5th DCA 1994). The failure of Matlack to raise the attorney-client privilege or work-product doctrine and submit a privilege log operates as a waiver of privilege and…

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