JOYCE C. KOKEN AND JAMES N. KOKEN, HER HUSBAND, PETITIONERS,
v.
AMERICAN SERVICE MUTUAL INSURANCE COMPANY, INC., A FOREIGN CORPORATION, RESPONDENT
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The Kokens sought review of a protective order that limited discovery in their bad faith action against their insurance company for failing to settle a personal injury claim within policy limits. The court held that in bad faith insurance settlement cases, all materials in the insurer's file must be produced, reversing the protective order that had shielded attorney work product.
All materials, including documents, memoranda, and letters contained in the insurance company's file up to and including the date of judgment in the original litigation must be produced in a bad faith settlement action, regardless of work product or privilege claims.
[1] In an action for bad faith against an insurance company for failure to settle a claim within policy limits, all materials in the insurance company's file, up to the date…
[2] Communications and correspondence between an attorney and their client concerning litigation constitute attorney work product.
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Join FLexlaw to unlock all legal intelligence“in an action for bad faith against an insurance company for failure to settle a claim within policy limits, because of its very nature and the posture of the parties involved, all materials, including documents, memoranda, and letters contained in the insurance company's file, up to and including the date of judgment in the original litigation, should be produced”
Establishes the controlling rule that work product protection does not apply to insurer files in bad faith settlement cases
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Join FLexlaw to unlock all legal intelligenceThe Kokens were defendants in a personal injury lawsuit by Llewellyn Price arising from an automobile accident. Price obtained a jury verdict of $18,7…
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[*806] PER CURIAM.
Petitioners Joyce and James Koken by way of certiorari seek review of an order granting defendant insurer’s motion for protective order in an action for bad faith in failing to settle a personal injury action within policy limits.
Having sustained injuries as a result of an automobile accident, Llewellyn Price filed suit against Joyce and James Koken and their liability insurer 1, American Service Mutual Insurance Company, and received a jury verdict for $18,750 which was $8,750 in excess of petitioners’ policy limits. Thereafter the Kokens filed the instant action against their insurer American Service Mutual, the respondent, for allegedly exercising bad faith in refusing to settle within the $10,000 policy limit. During discovery petitioners served a subpoena duces tecum for deposition on respondent’s attorney who also represented the petitioners in the litigation with Pierce. The subpoena requested the entire file pertaining to the claim of Pierce v. Koken, Case No. 73-25230 including all papers furnished by the adjuster of the respondent insurer and all correspondence, recommendations, etc. contained in the attorney’s file relating to the Pierce-Koken lawsuit.
Pursuant to RCP 1.280(c) respondent insurer filed a motion for protective order on the grounds, inter alia, that the materials sought by petitioners are privileged pursuant to the attorney/client relationship and constitute work product. After hearing, the trial judge entered an order requiring the production of all carbon copies in the attorney’s file that were mailed to persons, firms or corporations other than the respondent insurer.
With respect to the remaining items in the file, the trial judge after an in camera inspection entered the following protective order which reads in pertinent part:
“ORDERED AND ADJUDGED that Defendant’s Motion for Protective Order is hereby granted as to communications and correspondence contained in Defendant’s file between the attorney of record ' for Defendant and the Defendant in Case No. 73-25230, Pierce v. Koken, et al; as such papers pertain to the work product of said attorney and are not calculated to lead to discovery of admissible evidence.”
Petitioners filed the instant petition for writ of certiorari for review of this protective order. The recently established rule in this jurisdiction is that in an action for bad faith against an insurance company for failure to settle a claim within policy limits, because of its very nature and the posture of the parties involved, all materials, including documents, memoranda, and letters contained in the insurance dompany’s file, up to and including the date of judgment in the original litigation, should be produced. Stone v. Travelers Insurance Company, Fla.App.1976, 326 So. 2d 241. See also Boston Old Colony Insurance Company v. Gutierrez, Fla.App.1976, 325 So-.2d 416; State Farm Mutual Automobile Ins. Co. v. Barczak, Fla.App.1974, 296 So. 2d 493; Bell v. Commercial Insurance Co. of Newark, N. J., 280 F. 2d 514 (3rd Cir. 1960) and Annot., 22 A.L.R.2d 659 (1952).
Accordingly, the protective order-herein appealed is reversed and the cause remanded to the trial court for further proceedings not inconsistent herewith.
Reversed and remanded.
. Pierce v. Koken, Case No. 73-25230.
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Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)…ts, 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 applied in first-party bad faith actions. It appears that this inconsistency h…
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Dunn v. Nat'l Sec. Fire & Cas. Co., 631 So. 2d 1103 (Fla. 5th DCA 1993)…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 Insurance Co., Inc., 330 So. 2d 805 (Fla. 3d DCA 1976); Stone v. Travelers Insurance Co., 326 So. 2d 241 (Fla. 3d DCA 1976). Additional memos or documents in the file after date of the judgment can be obtained with a showing of good cause. Stone v. Travelers Insurance Co. Discovery o…
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Fid. & Cas. Ins. Co. of N.Y. v. Taylor, 525 So. 2d 908 (Fla. 3d DCA 1987)…claim file is subject to production in such an action. Morrison Assurance Co. v. U.S. Fire Ins. Co., 515 So. 2d 995 (Fla. 1st DCA 1987); Stone, 326 So. 2d at 243; Boston Old Colony Ins. Co., 325 So. 2d at 417; Koken v. American Serv. Mut. Ins. Co., 330 So. 2d 805 (Fla. 3d DCA 1976). In our view, because the pertinent issues are the same, there is no basis for distinguishing between types of “bad faith” insurance cases with respect to the present question.6 We therefore hold, as does the substantial weight o…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Bell v. Commercial Ins. Co. OF Newark, 280 F.2d 514 (3d Cir. 1960)
- State Farm Mut. Auto. Ins. Co. v. Barczak, 296 So. 2d 493 (Fla. 3d DCA 1974)