Hello and welcome to this JACPA Ethics Alert and blog which will discuss recent Florida Supreme Court per curiam opinion affirms the 4th DCA’s quashing of lower court order permitting discovery of privileged attorney/client communications between defendants and their attorneys in a bad faith lawsuit. The case is Genovese v. Provident Life and Accident Ins. Co., 74 So.3d 1064 (Fla. 2011). This is for you litigators.
According to the opinion, Peter Genovese filed a statutory first-party bad faith lawsuit against Provident Life and Accident Insurance Company (“Provident”) after Provident terminated monthly payments under his disability income policy. Genovese then requested production of Provident’s entire litigation file, including all correspondence and communications made between attorneys representing Provident and Provident’s agents regarding Genovese’s claims for benefits.
The trial court issued an order compelling production of the documents and Provident filed a Petition for Writ of Certiorari to the Fourth District requesting that it quash the trial court’s order. Provident argued, inter alia, that the Supreme Court’s decision in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005) did not permit the discovery of documents protected by the attorney-client privilege.
The 4th DCA granted the petition, quashed the trial court’s order compelling discovery of documents protected by the attorney-client privilege, and remanded for further proceedings citing Liberty Mutual Fire Insurance Co. v. Bennett, 939 So.2d 1113 (Fla. 4th DCA 2006), and the XL Specialty Insurance Co. v. Aircraft Holdings, LLC, 929 So.2d 578 (Fla. 1st DCA 2006). The 4th DCA also certified the question to be of great public importance which invoked the jurisdiction of the Florida Supreme Court.
The Florida Supreme Court’s Genovese opinion discusses the underlying statutory authorization for “bad faith” lawsuits, F.S. 624.155(1)(b)(1), which permits an insured to bring a civil action against an insurer who does not attempt “in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.”
In Ruiz, the Florida Supreme Court held that work product materials were discoverable in first-party bad faith actions brought pursuant to section F.S. 624.155; however, the only issue in that case was the application of the work product doctrine. Ruiz defined work product as materials “contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages.”
The Genovese opinion concludes that, although it held in Ruiz that attorney work product in first-party bad faith actions is discoverable, the Ruiz holding does not extend to attorney-client privileged communications and the insured may not discover those privileged communications between the insurer and its counsel during the underlying action as discovery in the subsequent first-party bad faith lawsuit. The opinion states, however, that the privilege may be overcome in limited circumstances.
Justice Pariente wrote a concurring opinion, which Justices Lewis, Labarga, and Perry joined, stating: “(W)here a claim of privilege is asserted, the judge should conduct an in camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege or whether the materials pertain to the investigation or evaluation of the underlying claim.” “In this case, the trial court did not conduct an in camera inspection of the documents. Rather, the trial court ordered production of Provident’s entire litigation file, including all correspondence and communications made between the attorneys representing Provident and Provident’s agents regarding Genovese’s claim for benefits. Therefore, on remand, it is essential that an in camera inspection take place to discern whether the objected-to documents are discoverable under the principles we announce.”
Bottom line: The Genovese opinion holds that attorney work-product in first-party bad faith actions is discoverable; however, this holding does not extend to privileged communications and communications that occurred between the insurer and its counsel during the underlying action are not discoverable. Justice Pariente’s concurring opinion would require an in camera inspection before the trial judge rules on this issue. Although broader issues of attorney/client confidentiality are also implicated, these issues are not discussed in the opinion.
…and be careful out there!
| As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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