STATE FARM MUTUAL AUTOMOBILE INS CO

v.

YESENIA ROMERO

This cause having been brought to this Court by a issued its opinion; ppeal, and after due consideration the A

YOU ARE HEREBY COMMAN

with th ' ' it court havin DED that e opinion of ' such further proceedings be had in said cause in accordance this COURT attached hereto and incorporated as part of this order, and with the rules of procedure and laws ofthe STATE OF FLORIDA. Lower Tribunal Case Number(s): 11-016921-SP 25 WITNESS the Honorable Abby Cynamon, Administrative Judge oftheAppellate Division ofthe Circuit Court of the Eleventh Judicial Circuit of Florida and the seal ofthe said Circuit Court at Miami, this 4"‘ day of February, 2015. A True Copy Attest ..___-, Vi‘; - v gm ~_1&.i§7T*‘»-"‘ I er A” By 141* A . I D6 I5» :~‘ ‘L _A,. . / ’ L» 0 , I.-mg , (;Q‘\i%‘»‘5EL or RECQW V W iiiw PARTYml av sonata "t <*:,.¥ i-r" s '9 , _ \?. -15-»: v Mandate rev. 10/22/2008 t&2»¥i%'***‘ S ,.\__ ;Q§§\il1 15% mi 1_\1'3l\ .4 -Hg =%‘ =“~ii ?’“Mg1am‘.h\ .'» ,- [*2] NOT FINAL UNTIL DISPOSITION OF

TIMELY FILED MOTION FOR

REHEARING

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA

APPELLATE DIVISION

APPELLATE CASE NO; 13-48 AP LOWER COURT CASE NO. 1 1-l§92§P ?( M 88=l HA9- NW5 fiétfiflfl ittfii £l³'lii8 llodsieqm '31: 9A6}[ STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, gig §ig§ Petitioner, Qfifi :13;; .. __..,. 2»-"5

V.

mr.,;, W YESENIA ROMERO, L Respondent. / Opinion filed: J5;/,1Mg 5/’ Z0 [5" On certiorari review of the County Court for Miami-Dade County, Florida, Nuria Saenz, Judge. Nancy W. Gregoire of Kirshbaum, Birnbaum, Lippman & Gregoire, PLLC and Abbi S. Frifield ofRoig, Tutan, Rosenberg & Zlotnick, PA for Petitioner. George A. David, for Respondent. Before SAYFIE, LOBREE, and LUCK, JJ. PER CURIAM: The issue in this case is one that has been well litigated before this court, the Third District Court ofAppeal, and the Florida Supreme Court — whether pre-litigation documents in an insurer’s claims file are discoverable in a first-party coverage lawsuit between the. insured and the insurer. Because we agree with our state’s highest court, the intermediate appellate court goveming the [*3] Eleventh Circuit, and the appellate panels ofthis court to address the issue, we grant the petition for writ of certiorari.

I.

In 201 1, respondent Yesenia Romero sued petitioner State Farm Mutual Automobile Insurance Company for personal injury protection benefits for State Farm’s breach of an insurance contract and for violating the PIP statute in section 627.736. In her complaint, Romero alleged that she was involved in a motor vehicle accident on December 22, 2009, where she was injured and was treated by medical providers. Romero alleged that she was covered by State Farm for the medical expenses and her transportation expenses that resulted from the accident. Romero alleged that she submitted her claim for personal injury protection benefits and transportation costs, but State Farm breached the insurance contract and Florida law by refusing to pay the full amount of interest. As part ofthe discovery process, Romero filed a request for State Farm to produce its “entire claims file concerning this case,” including “any and all computer generated adjusters’ notes made in this case up until the time that [State Farm] received [Romero’s] pre-suit demand letter regarding this case.” State Farm objected to the production of certain documents in its claims file, including the pre-lawsuit adjuster notes, because they were protected by the work product privilege, and Romero’s request was overly broad, unduly burdensome, irrelevant, and not reasonably related to lead to the discovery of admissible evidence. In response to State Farm’s discovery objection, Romero moved to compel a better answer to its discovery request for the pre-demand letter adjuster notes. A hearing on Romero’s motion was held on November 28, 2012. At the end ofthe hearing, the trial court ordered State Farm to provide for an in camera inspection of all adjuster notes generated from the inception ofthe claim through [*4] the receipt ofthe first demand letter from Romero. The trial court also invited the parties to provide any case law addressing the issue. On January ll, 2013, the trial court issued its order. The trial court said it had reviewed in camera thirty pages ofadjuster notes, and concluded that they were not protected under the work product doctrine because they were not prepared in anticipation of litigation. The trial court gave State Farm thirty days to comply with its order. Instead, on February 8, 2013, State Farm filed a petition for writ ofcertiorari seeking to quash the trial court’s order compelling it to turn over the pre-demand letter adjuster notes in the claims file.

II.

All three levels of Florida’s judiciary have said, in one form or another, that an insurance company’s claims file documents are not discoverable in a first-party coverage and damages lawsuit between an insurer and the insured. In Allstate Indemnity Company v. Ruiz, 899 So. 2d 1 121 (Fla. 2005), the Florida Supreme Court wrestled with the distinction between first- and third-party bad faith actions and its effect on the discovery of claims file documents. As part of its analysis, the Court adopted the Third District Court of Appeal’s approach in Fidelity & Casualty Insurance Company of New York v. Taylor, 525 So. 2d 908 (Fla. 3d DCA 1987), and quoted the following passage: In a “first-party” action against an insurance carrier founded upon section 624.l55(l)(b), which affirmatively creates a company duty to its insured to act in good faith in its dealings under the policy, liability is based upon the carrier’s conduct in processing and paying a given claim. Thus, the action is totally unlike Q ordinary “insured vs. insurer” action brought only under the policy, in which the carrier’s claim file is deemed not producible essentially because its contents are not relevant to the only issues involved, those of coverage and damages . . . . [*5] R_uiz, 899 So. 2d at 1 129 (emphasis added) (quoting Tag 525 So. 2d at 909-10).‘ In other words, in the ordinary insured-versus-insurer case, like Romero’s claim here, the insurance company’s claims file “is deemed not producible” because the documents are not relevant to determine whether the insurance contract covers the insured’s claims and the contractual amount ofthe damages. Following Ry, the Third District has likewise held that “[w]here . . . the insured is not pursuing a bad faith claim, but rather seeks relieffor breach ofcontract[,] [a] trial court departs from the essential requirements ofthe law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved.” Castle Key Ins. Co. v. Bgnu, 124 So. 3d 379, 380 (Fla. 3d DCA 2013) (alteration in original; quotation omitted). The Third District, moreover, has described as “well taken” the argument that “Florida law ‘prohibits insureds from obtaining discovery into an insurer’s claims files and claims handling material until contract/coverage litigation has concluded.”’ State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5 (Fla. 3d DCA 2013); see also Gov’t Employees Ins. Co. v. Rodriguez, 960 So. 2d 794, 795-96 (Fla. 3d DCA 2007) (“[A] party is not entitled to discovery of an insurer’s claim file or documents relating to the insurer’s business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer’ s obligation to provide coverage has been established.” (quotation omitted)); State Farm Fire & Ins. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995) (quashing an order ofproduction, holding that “State Farm’s claims files, manuals, guidelines and documents concerning its claim handling procedures were irrelevant to the first party dispute involved in this case”). The Third District granted petitions for certiorari inBi, Deisai, Rodriguez, and 1a@ because the trial courts departed from the essential requirements of law by 1 The Florida Supreme Court wrote: “We now agree with the analytical approach of the court in Fideli & Casual [*6] requiring the insurers to produce claims file documents during first-party coverage disputes. Claims file documents are “irrelevant” and not discoverable, the Court has said, before coverage and damages have been decided. Our court has followed the Third District’s lead. In at least three cases, the court’s appellate panels have granted certiorari petitions where the trial courts had ordered insurers to produce adjuster notes and claims file material in first-party personal injury protection lawsuits. S_ee State Farm Mut. Auto. Ins. Co. v. Perez, Case No. 13-408 AP (Fla. 11th Cir. Ct. Oct. 9, 2014) (“[T]he Third District Court of Appeal has specifically held that, in cases such as this, ‘notes in the claims file’ are prohibited from disclosure. Based upon this ruling, we must quash the order below which compelled the productions ofthe notes.” (citation omitted)); State Fami. Mut. Auto. Ins. Co. v. Menendez, 21 Fla. L. Weekly Supp. 493c (Fla. 11th Cir. Ct. 2014) (same); State Farm Mut. Auto. Ins. Co. v. S. Miami Health Ctr., 21 Fla. L. Weekly Supp. 27a (Fla. 1 1th Cir. Ct. 2013) (“Twice recently the Third District Court ofAppeal has granted petitions for writs ofcertiorari and applied Florida law which prohibits discovery of claims file documents and claims handling materials where a breach of contract or coverage issue is still pending and the case does not involve a bad faith claim.”).2 Here, there was a hearing on Romero’s motion to compel, where she conceded that the adjuster notes were part ofthe claims file.³ State Farm, in response, provided thirty pages of documents under seal to the Insurance Co. ofNew York v. Taylor[].” Ruiz, 899 So. 2d at 1129. 2 The one case brought to our attention where certiorari had been denied was because there was no transcript of the hearing and the court said that “[w]ithout it, the specific arguments made and exact responses provided, as well as the lower court’s analysis ofthe information presented, cannot be determined.” State Farm Mut. Auto. Ins. Co v. S. Miami Health Ctr., 21 Fla. L. Weekly 626a (Fla. llth Cir. Ct. 2013). 3 In arguing in favor ofthe motion, Romero told the trial court: “The 3rd DCA case law, all additional case law, Your [*7] trial court. The trial court conducted an in camera review ofthe thirty pages, and concluded that they were adjuster notes (but were not protected by the work product privilege). We, too, have reviewed State Farm’s in camera submission and conclude, as the trial court did, that they are computer generated adjuster notes from State Farm’s claims file. See , 124 So. 3d at 380 n.1 (“The case law prohibiting the disclosure of ‘claims file’ material, however, clearly encompasses items such as notes in the claims file, property loss information, and property loss notice fonns, which are all specific to the handling of an individual claim.” (emphasis added)). The trial court’s order compelling disclosure of the thirty pages of adjuster notes therefore departed from the essential requirements of law. Ll. at 380.

III.

For these reasons, we grant State Farm’s petition for writ of certiorari quashing the trial court’ s January 1 1, 2013 order compelling disclosure ofthe thirty pages ofadjuster notes wider seal.

FLEUR J . LO

E

CIRCUITJ

* * * * *

ROBERT J . LUCK

CIRCUIT JUDGE

Honor, say just because a document sits in a claims file doesn’t mean it’s protected automatically.” Tr. at 20.