PROGRESSIVE AMERICAN INSURANCE COMPANY

v.

ANGELS DIAGNOSTIC GROUP INC., A/A/O PARIS HERENCIA

1 The production of several other categories of documents is also addressed in the trial coun’s June 20, 2013 order. However, Prog;ressive’s petition for writ of ceitiorarl appeals only the court-ordered production of the adjuster’s notes prepared prior to the date of receipt of the presuit demand letter. [*3] O?—’l 4-’ "l4 14:44 FROM— T-38? P0008/0011 F—4'!'3 The answer is case specific and not always easy to determine. See Airocar, Inc. v. Goldmcm, 474 So. 2d 269 (Fla. 4th DOA 1985). “In the insurance context, a document may be deemed to have been prepared in anticipation of litigation if it was created after the insured tendered its claim for coverage; if it begins to appear that the insurer might deny coverage or reserve its rights; the insurer denies coverage; if coverage litigation appears imminent; or if coverage litigation commenced.” Kaufman, SS5 So. 2d at 910. “[T]he mere general likelihood of litigation in the corporatioifs ordinary conduct of business is not enough for a claim of work product protection.” Neighborhood Health P’ship, Inc. v. Peter F. Merkle M.D., P.A., 8 So. 3d 1180, 1184 (Fla. 4th DCA 2009). Rather, “[t]here must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually being sued." Id. " This Court’s well-reasoned opinion in State Farm Mutual Automobile Insurance Company v. South Miami Health Center, Ina, 18 Fla. L. Weekly Supp. 968a (Fla. llth Cir. Ct. Aug. 18, 2011) is directly on point with this case as to the facts and issue on appeal. The State Farm court held that “[t]he trial court departed from the essential requirements of the law in issuing the production order without first reviewing the privilege log, individually analyzing the work product objections and conducting an in camera inspection”. Id. [*4] O7-14-“14 14:44 FROI‘li- T-837 P0004/0011 F-478 In State Form, as here, the insurer, State Farm, was sued in a civil suit to collect the outstanding balance on a PIP claim. State Farm was served with requests for production seeking its entire claim tile, including adjuster notes and emails prepared until the time of receipt of the claimant’s demand letter. State Farm objected to producing the documents pursuant to the work product doctrine. In support of its work product objection, State Farm also filed a privilege log listing the documents for which it sought protection. Instead of producing the documents pursuant to a court order, State Farm petitioned this court for a writ of certiorari, which was granted. The applicable standard of review on appeal is whether the order compelling production of the adjuster’s notes in question departs from the essential requirements of the law and production of the documents will cause Progressive irreparable harm throughout the remainder of the case. See Ford Motor Co. v. Hall-Edwards, 997 So. 2d 1148, 1149 (Fla. 3d DCA 2009); CNL Resort Hotel L.P. v. City ofDoral, 991 So. 2d 417, 420 (Fla. 3d DCA 2008); American Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206, 1208 (Fla. 4th DCA 2001) (citing Martin-Johnson, Inc. v. Savage, 509 S0. 2d 1097 (Fla. 1987)). It is weil~settled that “[d]ocuments protected by work product immunity must not be lightly invaded.” Intercontinental Properties, Inc. v. Somy, 685 So. 2d 1035, 1036 (Fla. 3d DCA 1997). “Orders compelling production of matters claimed [*5] 0741 4314 14:45 FROM- T-33'? P0065/0011 F473 to be protected by the . . . work product doctrine present the required potential for irreparable harrn.” Coyne v. Schwrmz, Gold, Cohen, Zakarirz & Kotler, P.A., 715 So. 2d 1021, 1022 (Fla. 4:11 DCA 1998)(citi11g Martirr-Johnson, Inc. v. .S'avage, 509 So. 2d 1097 (Fla.198’7)). ' II)oouments are protected by the work product doctrine when they are prepared “in response to some event which foreseeably could be made the basis of a claim in the future.” Marshall ofMA, Inc. v. Mirzsal, 932 So. 2d 444, 447 (Fla. 3d DCA 2006). “Even preliniinary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.” Nafl Union Fire Ins. Co. ofPittsburgh, Pa. v. Florida Const, Commerce & Indus. Self Insurers Fund, 720 So. 2d 535, 537 (Fla. 2d DCA 1998) (quoting Anchor Nat '1 Fin. Servs., rm}. v. Smeltz, 546 So. 2a "/60 (Fla. 2d DCA 1989)). In the instant case, the foregoing standard was not applied during the hearing on the motion to compel and the analysis unde1tal<;en by the trial court is not consistent with the standard in Florida for determining the applicability ofthe work product doctrine. The trial court misapplied the law in implicitly ruling, without an inspection of the acljuster’s notes prepared prior to the receipt of the pre-suit demand letter, that those documents were not prepared in anticipation of litigation. While in many cases it may very well be determined that acljuster’s notes prepared before an insurer receives a pre-suit demand letter were prepared as part of a [*6] O7—'i4—"l4 ’l4:4b FROi'l— T-88? P0006/0011 F--W3 claims adjusting function and not in anticipation of litigation, that is not an automatic determination that can be made by the trial court absent an in camera inspection. Appellee mistakenly asserts on appeal, with no citation to the record below, that the trial court did conduct an in camera inspection of the documents in question before making its ruling. However, the hearing transcript evidences that the trial court did not review during the hearing any adjuster’s notes identified in Prog,ressive’s privilege log. Further, the trial court’s ruling as to production of the adjuster’s notes was reduced to Writing in an order compelling production of the documents which was entered on June 20, 2013, the same date of the hearing. The June 20, 2013 order unambiguously provides that “Defendant shall produce all adjuste1"s notes up to the receipt of Plaintiffs Demand letter. Defendant shall submit the remaining notes for in-camera inspection”. The hearing t1'anscript also demonstrates that the trial judge’s decision was based on the trial court’s ruling in another case involving the same issue. As such, -the trial court departed from the essential requirements of the law in granting the motion to compel as to the acljustcr’s pre-dernand letter notes Without first individually analyzing the work product objection and coriciucting an in camera [*7] 07-14314 14:45 FROf‘1l— T-38? PO00?/0011 F—4T"8 inspectionz. See Allstate Ins. C0., Inc.“ v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991) (noting that when the work product privilege is asserted, the court must hold an in camera inspection of the materials to determine the applicability of the privilege). Further, the order compelling, production of the adjuster’s notes in question would result in irreparable hann. See Coyne, supra, 715 So. 2d at 1022; State Farm, supra, 18 Fla. L. Weekly Supp. 968a. Accordingly, this Court grants the petition, quashes the June 20, 2013 order to the extent it requires production of the adjuster’s notes generated prior to Progressive’s receipt of the pre-suit demand letter, and remands with instructions for the trial court to conduct proceedings consistent with this opinion, including an in camera review of the documents in question. This court reaches no conclusions about the applicability of the work product doctrine asserted by Progressive as to the documents in question since that determination is reserved for the trial court.

2 The work product doctrine allows £1 party to withhoid “materials prepared in anticipation of litigation by or for a party or its representative . . . uniess the party seeking the discovery has need of the material and is unable to obtain the substantial equivalent without undue hardship." S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994); Fla. R. Civ. P. 1.280(b)(3). This “work product privilege” is premised on the rationale that “one paity is not entitled to prepare his case through the investigation Work product of his adversary where the same or similar infonnation is available through ordinary investigation techniques and discovery procedures.” Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980). Given the trial court‘s implicit ruling that the adjuster‘s notes in question were not work product, the record evidences that the trial court did not address at the hearing whether Angels could make the requisite showing of necessity of the materials and inability to obtain the substantial equivalent without undue hardship. Thus, no such showing was made below regarding the adjuster’s notes. [*8] 0?—'I4—"!4 14:45 FR0l'4— T—337 P0008/OOH F-533 Progtessive’s Motion for Atto1ney’s Fees Pursuant to Propcsai for Settlement is hereby granted contingent upon meeting the criteria set forth in Section 768.79(3), Florida Statutes. The ccult romands with instructions for the trial court to make that detcrmitlatioli. PRESCOTT, J., Concurs. SAl\/LPBDRO-IGLBSIA, J., Dissents. I dissent regarding the majo1'ity’s grant of certiorari from an order compelling production of certain portions of Progressive’s claims file, and write to establish some guiding precedent on the issue of the so-called "claims file privilege." ' Progressive seeks certioiari review of the trial ccurt’s order compelling it to produce certain documents from its claims file, including certain adjuster notes, that the trial court determined were not Work product sfier properly conducting an in camera inspection. The trial court did not compel production ofthe entire claims file but, afler ccmmendably performing the required in camera inspection, determined that certain documents in the claims file did not constitute work product because they were not prepared in anticipation of litigation - - which is the correct legal stanciaid for determining whether the work product privilege attaches. In particular, in this case, the trial court found that adjuster notes up to the point of Progressive receiving at statutory pre~suit Demand Letter were not prepared in t [*9] 0?—’l 4—’l4 14:46 FRGi4- T—337 P0609/0011 F-473 anticipation oflitigation. The majority opinion makes the assumption that the trial court did not review the documents, and did not conduct an in camera inspection; however, a close look at the transcripts indicates that who made the assertion of documents prior to the demand letter or after the demand letter was the trial attorney, not the trial court. Thus, in my view, there is no competent evidence in the file to indicate that an in can-zero inspection was not conducted. I do not believe that an insu1'e<;l’S mere claim for PIP benefits give rise to reasonably foreseeable or innninent litigation. See Cotton States Mut. Ins. C0. v. Turtle ReefAs.s'0c., Ina, 444 So. 2d 595, 596 (Fla. 3d DCA 2013) (work product privilege attaches to statements made by party’s insurer only ifthese were prepared “in contemplation of litigation"). - I agree with and would adopt the Well Written order, authored by The Honorable Michael Hanzman, in the case styled Udelson v. Nationwide Ins. Ca, Case No. 12-25140, cert. denied, Nationwide Ins. Co. v. Uclelson, 116 So. 3d 1273 (Fla. 3d DCA 2013). In Udelson, Judge Hanzman compelled production of certain documents contained in NationWide’s claims file, which Nationwide identified in its privilege log as work product. After conducting an in camera inspection, Judge Hanzman found that the documents were not prepared in anticipation of litigation. Rather, he determined that the materials "were generated as part of Na.ti0nwide’s adjustment [*10] 07-1 r-‘t—"I-4 14:48 FROM— T—887 P0010/0011 F~4?'8 Bf flleil‘ Claim; an activity that is required by the terms of its policy and performed in the ordinary course of an insurance ca1*rie1"s business. Judge Hanzmarfs order highlights the myth of the so-called "claims file" privilege. He "disagreed" with Nati011Wide’s contention "that materials are privileged - - and hence beyond the reach of its aclversary - - simply because they reside in its ‘olaims file’." As Judge Hanzman recognized, "[t]he critical question then is at which point does the submission of a ‘claim’ by an insured tum into an ‘event’ which ‘foreseeably’ could result in litigation. The answer is case specific and not always "easy to determine." Udelscrz, quoting Airocar, Inc. v. Goldman, 4'74 Sold 269 (Fla. 4th DCA 1985). Moreover, certiorari is properly denied where there has been no departure froin the essential requirements of law and the law is Well settled that, where a moving party has dernonstrated need and undue hardship to overcome the WOI‘i{ product privilege, information is discoverable even if otherwise privileged. See Fla.R.Civ.P. 1.280(4). Here, the trial COU11. found that the medical provider demonstrated such need and undue hardship end, therefore, the privilege (if any) W63 OV81'CO1‘l'iE‘;. [*11] O?—’l 4-’ 14 14:46 FROP4- T—88? P0011/0011 F—4?8 Our county court judges are more than capable to ascertain upon inspection whether docun1ent-s have been prepared in anticipation of litigation. We should not disturb their findings. The trial court did not depart from well-established principles of law in compelling production of certain documents after conducting an in camera inspection and determining that certain documents were not prepared in anticipation oflitigation. ; “"<'\ :‘*'-;-.iii ll