ROBERT SPRINGER, PETITIONER,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION, RESPONDENT
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Robert Springer sought certiorari to challenge a trial court order requiring him to produce all communications between himself and USAA's retained defense counsel. The appellate court held that USAA is entitled only to communications concerning the common interest in defending the liability claim, not communications concerning the insured's separate legal interests such as coverage or bad faith issues.
Communications between an insured and counsel retained by the insurer that pertain to the common interest in defending the liability claim are accessible to the insurer even if their interests later become adverse. However, communications concerning matters not pertaining to defense of the liability case—such as coverage issues or how to proceed if the case cannot be settled within policy limits—remain privileged and are not accessible to the insurer.
[1] Communications between an insured and counsel retained by the insurer to defend the insured, concerning matters pertaining to the common interest of defending the claim,…
[2] Communications between an insured and counsel retained by the insurer, concerning matters not pertaining to the defense or resolution of the liability case, such as cover…
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Join FLexlaw to unlock all legal intelligence“Communications between an insured and his counsel that pertain to the common interest held by the insured and the insurer — ie. the defense of the claim — are available to the insurer and this right of access would continue even if their interests become adverse.”
Establishes the core holding that the insurer has access to defense-related communications based on common interest, even after interests diverge
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSpringer filed a bad faith suit against USAA, his liability insurance carrier. During the litigation, the trial court ordered Springer to produce all …
The full statement of facts, procedural history, and disposition for this case are member content.
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GRIFFIN, J.
Petitioner, Robert Springer [“Springer”], seeks a writ of certiorari directed to an order of the trial court ordering him to produce to United Services Automobile Association [“USAA”], Springer’s liability carrier, all communications between Springer and the attorney hired by USAA to defend him in a liability suit.
This issue arises in the course of a “bad faith” suit by Springer against USAA. The two parties take almost diametrically opposing views of the attorney/client privilege issue — either that the insurer is entitled to all communications between the insured and USAA’s retained counsel, or that USAA is entitled to none. USAA concedes that it would not be entitled to communications between Springer and his lawyer after a certain point in time — the date the relationship between Springer and USAA became adverse. That date they appear to define as the date it became clear that the liability suit could not be settled within policy limits. Based on our review of the case law and secondary authorities, however, it appears that even before that moment, there may be a variety of communications between the insured and his attorney that the insurer has no right to access. Communications between an insured and his counsel that pertain to the common interest held by the insured and the insurer — ie. the defense of the claim — are available to the insurer and this right of access would continue even if their interests become adverse. By the same token, communications concerning matters not pertaining to the defense or resolution of the liability ease may be privileged. Examples would be a discussion of coverage issues or how to proceed if the case could not be settled within policy limits.
In some cases, the line between communications concerning defense of the claim and other issues may be difficult to draw and some documents may contain both attorney/client communications that USAA is entitled to access and some that it is not entitled to access. In this case, because the trial court found that USAA should have access to all documents, no in camera review was conducted. The court should review the documents whose production remains in dispute and order disclosed to USAA only those which relate to the defense of the liability claim, not communications pertaining primarily to the insured’s own legal interests.
PETITION GRANTED; ORDER VACATED.
SAWAYA and ORFINGER, JJ., concur.
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Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905 (Fla. 3d DCA 2004)…rest to the insured and insurer are subject to discovery, even if their interests later became adverse. “[However,] ... communications concerning matters not pertaining to the defense or resolution of the liability case may be privileged.” Springer, 846 So. 2d 1234, 1235 (Fla. 5th DCA 2003). Liberty raised the work-product privilege with respect to several documents. Although the parties maintained a fiduciary relationship during the proceedings, it is clear that portions of the alleged acts against Kaufman w…