DENNO
v.
GEICO GENERAL INSURANCE COMPANY
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The court held that a representation agreement is discoverable in a bad faith action and that a more complete privilege log is required.
Plaintiff sued her insurer for statutory bad faith after obtaining a judgment exceeding policy limits. Defendant sought to compel production of the re…
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MEMORANDUM OF LAW (Doc. No. 38) FILED: September 16, 2022
THEREON it is ORDERED that the motion is GRANTED. Plaintiff won a judgment against Defendant, her insurer, for an amount above her uninsured motorist policy limits, and Plaintiff thereafter filed suit against Defendant alleging statutory bad faith. Doc. Nos. 1-1, 1-4. On March 29, 2022, Defendant removed the case to this Court. Doc. No. 1. In the above-styled motion, Defendant seeks to compel Plaintiff to produce the representation agreement entered into between Plaintiff and the attorneys that represented her in the underlying uninsured motorist action. Doc. No. 38. Defendant also seeks an Order compelling Plaintiff to produce a better privilege log. Id. Plaintiff has filed a response in opposition. Doc. No. 45; see also Doc. Nos. 42-43. Defendant first argues that the representation agreement is relevant to the main issue in this bad faith action: whether Plaintiff’s uninsured motorist claim could and should have settled. Doc. No. 38, at 2. Additionally, Defendant argues that the representation agreement is relevant to Plaintiff’s and her attorneys’ credibility, bias, and pecuniary interest with respect to deciding whether to settle Plaintiff’s uninsured motorist claim within or for the policy limits. Id. In response, Plaintiff argues the representation agreement is protected by the attorneyclient privilege, she has not waived that privilege, and Defendant must first demonstrate that it had no opportunity to settle the underlying claim before it is permitted to discover Plaintiff’s willingness to settle. Doc. No. 45, at 1-2. Upon consideration, Defendant has the better argument, as it pertains to the discovery of relevant information. See Soricelli v. GEICO Indem. Co., No. 8:16-cv- 1535-T-30TBM, 2017 WL 275967, at *4-6 (M.D. Fla. Jan. 20, 2017) (compelling, in a statutory bad faith insurance case, production of a representation and/or fee agreement between plaintiff and his attorneys in the underlying action, because such representation and/or fee agreements are “generally not privileged, and are “fair game for discovery,” although “likely not admissible at trial”); Ford v. Gov’t
Emps. Ins. Co., No. 1:14cv180-MW/GRJ, 2015 WL 11109504, at *2 (N.D. Fla. Feb. 3, 2015) (in a bad faith action, compelling production of any fee agreements that plaintiff entered into as a result of the underlying accident, but offering “no opinion on whether the agreement will be admissible at trial.”).
Plaintiff provides no legal authority establishing that a party must first show waiver of the attorney-client privilege in order to obtain discovery of an underlying representation agreement.1 Moreover, as this Court has previously noted, whether an insurer acted in bad faith is determined under the totality of the circumstances, and the “conduct of the claimant and the claimant’s attorney is relevant to determining the ‘realistic possibility of settlement.’” Robles v. GEICO Indem. Co., No. 8:19-cv-1293-T-60AAS, 2020 WL 3895475, at *3 (M.D. Fla. July 10, 2020) (citations omitted). Accordingly, Defendant’s request for a copy of any fee agreement entered into with Plaintiff’s attorneys in the underlying action will be
Alternatively, if Plaintiff has already identified all such withheld documents, Plaintiff shall provide to Defendant a notice stating (1) that the privilege logs previously produced (both by Plaintiff and by counsel in the underlying action) include any and all responsive documents to the RFPs at issue; and (2) identify which RFPs the withheld documents listed on the privilege logs are responsive to. Accordingly, Defendant’s Motion to Compel Representation Agreement and Better Privilege Log and Memorandum of Law (Doc. No. 38) is GRANTED. On or before October 21, 2022, Plaintiff shall produce to Defendant any and all representation and/or fee agreement(s) between her and her attorneys in the underlying action. By that same deadline, Plaintiff shall either provide a supplemental privilege log that identifies all documents being withheld in response to RFPs 2-3, 7-8, and 12, or provide to Defendant a notice stating (1) that the privilege logs previously produced (both by Plaintiff and by counsel in the underlying action) includes any and all responsive documents to the RFPs at issue; and (2) identifying which RFPs the withheld documents listed on the privilege logs are responsive to. Because Defendant does not seek fees or any other sanctions, the Court declines to award any. See Fed. R. Civ. P. 37(a)(5) (iii).
DONE and ORDERED in Orlando, Florida on October 7, 2022.
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LESLIE AN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to: Counsel of Record Unrepresented Parties