Party Discovery: United Property & Casualty Insurance Company Vs Family Security Insurance Company

On May 17, 2019 a Party Discovery was filed involving a dispute between Madera Sr, Angel, and Family Security Insurance Company, United Property & Casualty Insurance Company, for Insurance Claim in the District Court of Collier County.

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Filing # 96493419 E-Filed 09/30/2019 03:14:54 PM

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA

ANGEL MADERA, SR.,
Plaintiff, CASE NO.: 11-2019-CA-002015-0001-XX
v.

FAMILY SECURITY INSURANCE
COMPANY,

Defendant.
/

DEFENDANT’S RESPONSE TO PLAINTIFF’S FIRST
REQUEST FOR PRODUCTION TO DEFENDANT

COMES NOW, Defendant, FAMILY SECURITY INSURANCE COMPANY, by and
through the undersigned counsel and pursuant to Rule 1.350 Fla. R. Civ. P. responds to the
Plaintiffs First Request for Production to Defendant as follows:

GENERAL OBJECTIONS

1. Defendant objects to Plaintiffs’ Requests to Produce to the extent they seek information and/or
documents protected from disclosure by the attorney client privilege, work product privilege,
or any other application, privilege, or immunity.

2. Defendant objects to Plaintiffs’ Requests to Produce to the extent they seek information that is
not reasonably calculated to lead to the discovery of admissible evidence.

3. Defendant objects to Plaintiffs’ Requests to Produce to the extent they are vague and
ambiguous and Defendant is unable to determine what information is sought and thus
responding to same is likely to lead to confusing, misleading, inaccurate, or incomplete
responses.

4. Defendant objects to Plaintiffs’ Requests to Produce to the extent they seek documents that are
contained within the insurer’s claim file or underwriting file and are irrelevant to the dispute
in this matter. Files pertaining to the handling of first party insurance claims and documents
concerning the claims handling procedures are irrelevant to a dispute concerning property
coverage. State Farm v Valido, 662 So. 2d 1012, 1013 (Fla. 3rd DCA 1995). Also see State
Farm Florida Ins. Co. v. Gallmon, 835 So. 2d 389 (Fla. 2nd DCA 2003), which holds “claim
files, investigative reports, adjuster notes, underwriting files, company policies and manuals,
training materials, certain personnel files, sales brochures and marketing materials, computer

FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 09/30/2019 03:14:54 PMmanuals for operating internal software and programs, details of rewards and bonus programs
for employees, employee incentive and compensation programs, third-party programs and
correspondence about ... claims, its casualty claims manual and estimating manual, and
minutes of meetings at which ... claims were discussed were either irrelevant to the first-party
dispute that this case presents or are privileged work product. See United States Fire Insurance
Company y. Clearwater Oaks Bank, 421 So. 2d 783 (Fla. 2d DCA 1982) which found
“Respondent insured was not entitled to discovery of petitioner’s claim files, because such files
were only discoverable in a claim for bad faith, which could not be prosecuted where the parties
merely disagreed about coverage.”

. Defendant objects to Plaintiffs’ Requests to Produce to the extent they seek documents that are
contained within the insurer’s claim file or underwriting file which are work product and/or
attorney client privileged information. Generally, an insurer's claim and litigation files
constitute work product and are protected from production. See Fla. Stat § 90.502, FRCP
1.280(b)(3); Am. States Ins. Co. v. Kransco, 641 So. 2d 175 (Fla. Sth DCA 1994). The claim
file includes communications and recorded impressions and observations by employees and/or
representatives of the insurer that are protected by the work-product and/or the attorney-client
privilege. Materials in an insurer’s claims file prepared in anticipation of litigation are
privileged regardless whether the materials were prepared prior to filing the lawsuit. Allstate
Ins. Co. v Levin, 571 So. 2d 7 (Fla. 3rd DCA 1990). The analysis differs however when an
insurance company is sued for bad faith. See Continental Cas. Co. v. Aqua Jet Filter Sys., Inc.,
620 So. 2d 1141 (Fla. 3d DCA 1993); Kujawa v. Manhattan Nat'l Life Ins. Co., 541 So. 2d
1168 (Fla. 1989). This is not a claim for bad faith and any "fishing expedition" in this litigation
to attempt such discovery is impermissible. Al/state Indemnity Co. v. Ruiz, 780 So. 2d 239
(Fla. 4th DCA 2001), Allstate Insurance Company v. Podhurst, 491 So. 2d 1222 (Fla. 4" DCA
1986), State Farm Fla. Ins. Co. v. Kramer, 41 So. 3d 313 (Fla. 4 DCA 2010).

. Defendant objects to Plaintiffs’ Requests to Produce to the extent they seek documents that are
contained within the insurer’s claim file or underwriting file, as this discovery is not
permissible in an action to determine coverage even when that action was combined with a bad
faith action until after the insurer's obligation to provide coverage had been established. State
Farm Fire and Casualty Co. v. Martin, 673 So. 2d 518 (Fla. 5th DCA 1996); State Farm
Mutual Auto. Ins. Co. v. Cook, 744 So. 2d 567, 568 (Fla. 2nd DCA 1999); Nationwide Ins. Co.
of Fla. v. Demmo, 57 So. 3d 982, 984 (Fla. 2d DCA 2011).

. A Privilege Log will be produced upon a ruling of the Court on all non-privilege objections
asserted above. See Gosman v. Luziniski, 937 So. 2d 293 (Fla. 4 DCA 2006) which states “A.
party is required to file a log only if the information is ‘otherwise discoverable.’ Where are
party claims that the production of documents is burdensome and harassing, such as was done
here, the scope of the discovery is at issue. Until the court rules on the request, the party
responding to the discovery does not know what will fall into the category of discoverable
documents.” Also see Life Care Ctrs. Of Am. V. Reese, 948 So. 2d 830 (Fla. 5 DCA 2007).
Further DLJ Mortgage Capital, Inc. v. Fox, 112 So. 3d 644 (Fla. 4" DCA 2013) follows
Gosman on non-privilege objections, and also holds that (waiver due to) “...failure to file a
log should not be applied to categorical assertions of privilege.”8. Defendant reserves the right to amend its responses to Plaintiffs’ Requests to Produce as
discovery is ongoing.

DEFENDAN
PL

T’S INDIVIDUAL RESPONSES AND OBJECTIONS TO
IFFS’ FIRST REQUEST FOR PRODUCTION

1. A true and correct copy of all the applicable insurance policy issued to the Plaintiff, by
Defendant, including any and all endorsements in effect on the date of loss.

RESPONSE: See Plaintiff’s August 21, 2019 Notice of Filing.

2. All documents regarding the first notice of loss report, report from agent of the loss, or
correspondence from plaintiff, named insured or attorneys.

OBJECTION:

RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: See Exhibit 2,
which contains true and correct copies of non-privileged and discoverable documents from
Defendant’s claim investigation pre-suit, which contains documents responsive to this
request as Defendant understands it.

3. All telephone messages to or from you, or any of our agents on your behalf regarding
receipt of notice of claims.

OBJECTION:
This request is overbroad, vague

RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: Defendant is not
in possession of any recordings of telephone messages concerning this claim.

4. All interoffice memoranda and claim notes regarding receipt of notice of claims and
telephone conversations with anyone about the receipt of notice of claims. If this information is
on records or phone logs containing notations or comments for which you are asserting a privilege,
please redact the privileged portions and produce the remainder of the record or log.

OBJECTION:

5. All correspondence to or from anyone, including any insurance agencies, any employers,
any agencies hired as adjusters to investigate the claims herein. If this information is on records
or phone logs containing notations or comments for which you are asserting a privilege, please
redact the privileged portions and produce the remainder of the record or log.

OBJECTION:

6. Any and all claim forms, including proof of loss forms, notice of loss reports, authorization
forms, and any other claim forms contained in said file.

OBJECTION:

RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: No executed proof
of loss forms were have been returned to Defendant concerning this claim.

7. Any and all documents containing any information on what was said by the Plaintiff, or
Plaintiff's agent(s) at any time during the handling and processing of the subject claim including
adjuster notes, claim reports, interoffice memorandum, tape recordings of any statements made by
plaintiff, or plaintiff's agent(s) Examination Under Oath transcripts, and any transcripts or written
statements from the Plaintiff or Plaintiff’s agent(s).

OBJECTION:

This request is overbroad, vague, not reasonably calculated to lead to the discovery of
admissible evidence, and seeks materials protected by the work product privilege and
attorney-client privileges. Claim file materials are not discoverable until issues of liability
and damages are finally determined. Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 248
So. 3d 180, 186 (Fla 2nd DCA 2017).RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: Defendant is not in
possession of any examination under oath transcripts or recorded statements concerning this
claim.

8. Each and every timesheet, log, or any other documents reflecting time spent by Defendant
or its agents, at the Plaintiff's property.

OBJECTION:

9. Each and every document, evidencing the name, address, and the position/relationship with
Defendant, of every individual who has visited or plans to visit the Plaintiffs property on behalf
of the Defendant.

10. Copies of any photographs and inspection reports of the insured property prior the date of
loss.

11. Copies of any photographs and inspection reports of the insured property subsequent to the
date of loss.

12. Any and all photographs and inspection reports, appraisal reports, roof and plumbing
reports of the insured property received by the insurance carrier prior to and subsequent to the date
of loss.

OBJECTION: This request is overbroad, vague, not limited in scope or time, not reasonably
calculated to lead to the discovery of admissible evidence, and seeks prohibited discovery
into work product, trade secret, and underwriting materials.RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: See Exhibit 2,
which contains true and correct copies of non-privileged and discoverable documents from
Defendant’s claim investigation pre-suit, which contains documents responsive to this
request as Defendant understands it.

13. Any and all invoices and bills reflecting payments made by the plaintiff with regard to
premiums paid under the subject policy of insurance herein.

OBJECTION: This request is not reasonably calculated to lead to the discovery of admissible
evidence as no defense premised upon failure to pay premiums has been advanced by
Defendant.

14. Any and all correspondence or written communications from the Defendant to the Plaintiff
which in any manner pertains to the Plaintiff’s loss as described in the Complaint.

15. Any and all correspondence or written communications from the Plaintiff to the Defendant,
which in any manner pertains to the Plaintiff’s loss as described in the Complaint.

16. All communications between Plaintiff and Defendant regarding any and all matters,
including without limitation, any claims made by Plaintiff to Defendant under any policies of
insurance issued for the insured property.

OBJECTION: This request is overbroad, vague, not limited in scope or time, not reasonably
calculated to lead to the discovery of admissible evidence as to matters outside the insurance
claim at issue in this litigation.

17. Any and all documents of whatever nature and kind submitted by the Plaintiff and/or
Plaintiff's agent(s), employee(s), attorneys, etc., to the Defendant, its agents, and/or employees, in
regard to the subject loss.

RESPONSE: See Exhibit 2, which contains true and correct copies of non-privileged and
discoverable documents from Defendant’s claim investigation pre-suit, which contains
documents responsive to this request as Defendant understands it.18. Any and all written communications between Defendant and any third party concerning
the processing, acceptance, or denial of any portion of Plaintiff's claim.

OBJECTION:

This request is overbroad, vague, not reasonably calculated to lead to the discovery of
admissible evidence, seeks materials protected by the work product privilege and attorney-
client privileges, and seeks discovery into consulting expert materials, and/or premature
expert disclosure. Claim file materials are not discoverable until issues of liability and
damages are finally determined. Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 248 So.
3d 180, 186 (Fla 2nd DCA 2017).

19. All correspondence, forms, notations, memoranda or other information wherein you
transmitted any information about Plaintiff to any third party not an employee of Defendant.

OBJECTION:

20. Any and all materials, papers, documents, photographs or tangible things of any kind relied
upon by Defendant, other than the insurance policy, as a basis for denial of the claim of coverage
of insurance for the loss at issue in the Complaint.

21. All inspection reports or other documents that evidence the cause of the damages at issue
in the subject claim as determined by you or your representative(s).

RESPONSE: See Exhibit 2, which contains true and correct copies of non-privileged and
discoverable documents from Defendant’s claim investigation pre-suit, which contains
documents responsive to this request as Defendant understands it.22. All photographs or videos taken by you or your representative(s) in connection with the
initial issuance or renewal of the subject policy.

23. All correspondence to and from any adjusters, public adjusters, contractors, or appraisers
that reviewed any damage which is the subject of the action herein, including any printouts or
explanations or supporting documentation for any reductions suggested by the adjuster, public
adjuster, contractor, or appraiser.

OBJECTION:

24. Any and all photographs and/or video tapes within the possession, custody, or control of
the Defendant, its agents, or employees, concerning the subject matter of this litigation. As
grounds for this paragraph, the Plaintiff would state that they cannot, without undue hardship,
obtain a substantial equivalent of these photographs.

OBJECTION:

25. The application for insurance and all documents submitted to your company by the insured
or her agent(s) prior to issuance of the insurance contract.OBJECTION: This request is not reasonably calculated to lead to the discovery of admissible
evidence as no defense premised upon misrepresentation in the application has been
advanced by Defendant.

26. A complete copy of the underwriting file, cover to cover, including jackets, electronic
notes/memoranda, and diaries, regarding the issuance of insurance to Plaintiff’s property.

27. Any and all estimates of damages to real property, personal property, and expenses for
removal for any coverage available for Plaintiff's loss subject matter of this litigation.

OBJECTION:

28. Any material or property that you or your representatives removed from the insured
property.
RESPONSE: None in Defendant’s possession.

29. Copies of any and all documents that show payments made to Plaintiff, if any, on this
claim, including but not limited to a copy of each check issued to Plaintiff for payment of any
portion of Plaintiff's claim.

30. All appraisals of loss or value of loss prepared by, for, or on behalf of Defendant regarding
the subject loss.OBJECTION:

31. Copies of any diagrams, models, drawings, sketches, blueprints, or any other reproduction
of the subject risk made before or after the subject loss.

OBJECTION:

This request is overbroad, vague, not reasonably calculated to lead to the discovery of
admissible evidence, seeks materials protected by the work product privilege and attorney-
client privileges, and seeks discovery into consulting expert materials, and/or premature
expert disclosure. Underwriting and claim file materials are not discoverable until issues of
liability and damages are finally determined. Homeowners Choice Prop. & Cas. Ins. Co. v.
Avila, 248 So. 3d 180, 186 (Fla 2nd DCA 2017).

32. Copies of any and all Proof of Loss forms submitted by Plaintiff or her agent(s) to
Defendant, with copies of all supporting documentation.

RESPONSE: None in Defendant’s possession.

33. Acopy of defendant’s file regarding the insured property.

OBJECTION:

This request is overbroad, vague, not reasonably calculated to lead to the discovery of
admissible evidence, seeks materials protected by the work product privilege and attorney-
client privileges, and seeks discovery into consulting expert materials, and/or premature
expert disclosure. Underwriting and claim file materials are not discoverable until issues of
liability and damages are finally determined. Homeowners Choice Prop. & Cas. Ins. Co. v.
Avila, 248 So. 3d 180, 186 (Fla 2nd DCA 2017).

1034. All investigative reports concerning Plaintiffs claim, which is subject of this litigation,
and all written communications between Defendant and any third party concerning said report(s).

OBJECTION:

35. Any document showing or explaining which items, if any, Defendant made payment upon,
the amount of damage, and how the amount was determined.

OBJECTION:

This request is overbroad, vague, not reasonably calculated to lead to the discovery of
admissible evidence, and seeks materials protected by the work product privilege. Claim file
materials are not discoverable until issues of liability and damages are finally determined.
Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 248 So. 3d 180, 186 (Fla 2nd DCA 2017).

36. Any and all writings, memorandums, notes, or other material reflecting examination by the
Defendant of any of the damage to the insured premises not covered above.

OBJECTION:

1137. Any and all statements, whether written, oral or recorded, in whatever fashion, taken of the
Plaintiff and/or her agents, servants, employees, etc., in regard to the subject matter of this
litigation.

OBJECTION:

RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: Defendant is not in
possession of any examination under oath transcripts, recorded statements, or transcribed
statements concerning this claim.

38. Any and all statements, whether written, oral or recorded in whatever fashion, taken of all
independent witnesses or other persons by the Defendant with regard to the subject matter of this
lawsuit.

OBJECTION:

RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: Defendant is not in
possession of any examination under oath transcripts, recorded statements, or transcribed
statements concerning this claim.

39. Transcripts of any and all audio recordings of all recorded statements taken by you or your
representatives in connection with the subject loss.

RESPONSE: None in Defendant’s possession.

40. Transcripts of all Examinations Under Oath conducted by you or your representatives in
connection with the subject loss.

RESPONSE: None in Defendant’s possession.

1241. — All documents or graphic materials that were marked as exhibits, referenced, or reviewed
on the record during any Examinations Under Oath conducted by you or your representatives in
connection with the subject loss.

RESPONSE: None in Defendant’s possession.

42. A list and/or documents showing the names, addresses and telephone numbers of any and
all witnesses whose statements have been taken, indicating their full legal name, residence
addresses, and telephone number in regard to the subject matter of this litigation.

RESPONSE: None in Defendant’s possession.

43. All report(s), including adjuster(s) report(s), examiner(s) report(s) and expert report(s),
including without limitation, diagrams, photographs, notes, memoranda, field notes, samples,
contracts, video tapes, correspondence, calculations, rough drafts, partial drafts, and laboratory
reports related in any way to the facts of the claims in the Complaint or to the litigation.

RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: Defendant is not in
possession of any examination under oath transcripts, recorded statements, or transcribed
statements concerning this claim.

44. All correspondence, documents, photographs and videos pertaining to any previous
insurance claims(s) made by the Insured or by previous owners of the subject Property that were
reviewed by you or your representatives in the course of investigating the instant claim and/or
during the course of litigating the instant claim.

OBJECTION:

45. Any and all documentation or other tangible evidence which you contend supports your
claim that all conditions precedent to bringing this action have not been met.

RESPONSE: See Defendant’s Answer and Affirmative Defenses and Exhibit _2, which
contains true and correct copies of non-privileged and discoverable documents from

13Defendant’s claim investigation pre-suit, which contains documents responsive to this
request as Defendant understands it.

46. All correspondence to the insured or their representative informing them of the right to
participate in mediation pursuant to Section 627.7015 Fla. Stat. and all documents explaining
mediation to insured.

47. All documents, including photographs, the Defendant reviewed, relied on, identified or
referred to in answering Plaintiffs First Set of Interrogatories.

RESPONSE SUBJECT TO AND WITHOUT WAIVING OBJECTION: Defendant is not in
possession of any examination under oath transcripts, recorded statements, or transcribed
statements concerning this claim.

48. All documents that support Defendant’s Answer and Affirmative Defenses.

49. All documents, including photographs, that Defendant relied upon to deny, withhold, delay
payment, or conditionally/partially pay Plaintiffs claim that is subject of this lawsuit.

50. All written or computerized records of any investigation or adjustment activities from the
date of the loss, through the date of this lawsuit or the date litigation was first reasonably
anticipated, or conducted in connection with the claim at issue in this action.

OBJECTION: This request is overbroad, vague, not reasonably calculated to lead to the

discovery of admissible evidence, seeks materials protected by the work product privilege
and attorney-client privileges, and seeks discovery into consulting expert materials, and/or

14premature expert disclosure. Claim file materials are not discoverable until issues of liability
and damages are finally determined. Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 248
So. 3d 180, 186 (Fla 2nd DCA 2017). Homeowners Choice Prop. & Cas. Ins. Co. v. Mahady,
2019 Fla. App. LEXIS 12893, *3-4, 44 Fla. L. Weekly D 2125, 2019 WL 3938885 (“This
suggests the trial court viewed as protected only those items postdating the denial of the
claim, seemingly in anticipation of litigation, as opposed to when the issue of coverage was
determined. However, these discovery requests are facially improper, in their entirety.”

51. All written or computerized communications and written or computerized records of oral
communications, whether in person or by phone, to or from any employee or agent of defendant
that concern, refer or relate in any way to the decision to pay, deny, withhold, delay payment or
conditionally, partially pay plaintiffs claim.

52. Any and all documents, notes, records, test results and related materials relied upon by you
in reaching your conclusion to withhold payment on the plaintiff’s claim.

53. All documents which indicate or support the date when Defendant contends it first
reasonably anticipated litigation with Plaintiff and all reasons it reasonably anticipated litigation
at that time.

OBJECTION: This request is overbroad, vague, not reasonably calculated to lead to the
discovery of admissible evidence, seeks materials protected by the work product privilege
and attorney-client privileges, and seeks discovery into consulting expert materials, and/or
premature expert disclosure. Claim file materials are not discoverable until issues of liability
and damages are finally determined. Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 248
So. 3d 180, 186 (Fla 2nd DCA 2017). Homeowners Choice Prop. & Cas. Ins. Co. v. Mahady,
2019 Fla. App. LEXIS 12893, *3-4, 44 Fla. L. Weekly D 2125, 2019 WL 3938885 (“This
suggests the trial court viewed as protected only those items postdating the denial of the
claim, seemingly in anticipation of litigation, as opposed to when the issue of coverage was
determined. However, these discovery requests are facially improper, in their entirety.”

1554. Defendant’s Privilege Log, pursuant to Florida Rule of Civil Procedure 1.280(b)(6), which
identifies with particularity any and all documents withheld in response to the preceding
paragraphs and in response to plaintiff's first set of interrogatories as privileged, confidential or
otherwise protected from discovery.

RESPONSE: A Privilege Log will be produced upon a ruling of the Court on all non-privilege
objections asserted above. See Gosman vy. Luziniski, 937 So. 2d 293 (Fla. 4" DCA 2006) which
states “A party is required to file a log only if the information is ‘otherwise discoverable.’
Where are party claims that the production of documents is burdensome and harassing, such
as was done here, the scope of the discovery is at issue. Until the court rules on the request,
the party responding to the discovery does not know what will fall into the category of
discoverable documents.” Also see Life Care Ctrs. Of Am. V. Reese, 948 So. 2d 830 (Fla. 5‘
DCA 2007). Further DLJ Mortgage Capital, Inc. v. Fox, 112 So. 3d 644 (Fla. 4'* DCA 2013)
follows Gosman on non-privilege objections, and also holds that (waiver due to) “...failure
to file a log should not be applied to categorical assertions of privilege.”

CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true and correct copy of the foregoing has been furnished by
electronic mail (e-mail) to the designated email address(es) on this 30" day of September, 2019
to: Alexis M. Mena, Esq., Simpson & Mena, P.A., 2250 Southwest Third Avenue, Suite 204,

Miami, FL 33129 (alexis@simpsonmenalaw.com; katherine@simpsonmenalaw.com and

Tit T Lbede-

ROBERT T. SCHULTE, ESQ.

Florida Bar Number: 088819
Scarborough Attorneys at Law

100 S. Ashley Dr., Suite 450

Tampa, FL, 33602
pleading@scarboroughattorneys.com
Tel: 813-253-0097 Fax: (813) 253-0779
Attorneys for Defendant

filings@simpsonmenalaw.com).

Case Info

Judge

Foster, Joseph G Track Judge’s New Case

Case No.

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Case Filing Date

May 17, 2019

County

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