Preview
Filing # 75978564 E-Filed 08/03/2018 04:56:24 PM
26054
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
MONICA RADU,
CASE NO.: CACE-18-002025
Plaintiffs,
vs.
UNIVERSAL PROPERTY &
CASUALTY INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S RESPONSE TO PLAINTIFFS’ REQUEST FOR PRODUCTION
Defendant, UNIVERSAL CHOICE PROPERTY & CASUALTY INSURANCE
COMPANY, INC. (“UNIVERSAL”), by and through its undersigned counsel hereby responds to
Plaintiff's Request for Production and states as follows:
1. Any and all insurance policies ever issued by the Defendant to the Plaintiffs, including all
declaration pages, applications, addenda and riders.
RESPONSE: Objection. Overbroad and not limited in time and/or scope. Not relevant. Not
reasonably calculated to lead to the discovery of admissible evidence.
Notwithstanding and without waiver of said objections, Defendant asserts that it
issued policy number 1501-1500-6022, to Monica Radu the “named insured”),
which was effective from February 8, 2017, through February 8, 2018 (the
“Policy”), for the insured property located at 1541 Hollywood Blvd., Hollywood,
FL 33020, a certified copy of which is attached.
2. Any and all correspondence between you and the Plaintiff or anyone acting on the
Plaintiff's behalf.
RESPONSE: All correspondence between Defendant and/or its representatives and the named
insured and/or the Plaintiff and/or their representatives regarding the loss that is
the subject of this lawsuit has been attached.
3. Any and all correspondence, forms, reports or other documents between you and any
third party regarding the Plaintiff or Plaintiff's claim.
RESPONSE: Objection. Not Relevant. Work product. Not reasonably calculated to lead to the
discovery of admissible evidence. This request seeks documents contained within
*4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 8/3/2018 4:56:24 PM.****Defendant’s claim file. The claim file is comprised wholly of documents that are
irrelevant to the issues in this pending action. 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. Kujawa v
Manhattan National Life Ins. Co., 541 So.2d 1168, 1169 (Fla. 1980); State Farm
v Valido, 662 So.2d 1012, 1013 (Fla. 3rd DCA 1995).
Additional objection is asserted as to work product privilege. Generally, an
insurer's claim and litigation files constitute work product and are protected from
production. See § 90.502, Fla.Stat., Fla.R.Civ.P. 1.280(b)(3); Am. States Ins. Co.
v. Kransco, 641 So.2d 175 (Fla. 5th 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. Allstate Indemnity Co.
v. Ruiz, 780 So.2d 239,(Fla 4th DCA 2001). See also State Farm Florida Ins. Co.
v. Aloni, 101 So. 3d 412 (Fla. 4" DCA 2012); State Farm Mut. Auto. Ins. Co. v.
Tranchese, 49 So. 3d 809 (Fla. 4" DCA 2010).
In addition to the law cited above, discovery of insurer's claim file 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. Sth DCA 1996); State Farm Mutual Auto. Ins. Co. v. Cook, 744
So.2d 567, 568 (Fla. 2nd DCA 1999).
Furthermore, “a trial court departs from the essential requirements of the law in
compelling disclosure of the contents of an insurer’s claim file, when the issue of
coverage is in dispute and has not been resolved.” Nationwide Ins. Co. v.
Demmo, 57 So.3d 982, 984 (Fla. 2d DCA 2011); citing to Seminole Cas. Ins. Co.
v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009). “Further, requiring the
disclosure of claim file materials during the litigation of coverage issues would
result in irreparable harm that cannot be adequately addressed on appeal.” Id.
Also, the privilege objections of work product or attorney client cannot be
deemed to be waived under the circumstances where a relevancy objection has
been asserted or the discovery of the sought after documents or records are
impermissible. See State Farm Florida Ins. Co. v. Kramer, 2010 Fla. App. LEXIS
10352; 35 Fla.L. Weekly D1558, quashing a trial court order compelling
production of privileged materials and instructing the trial court to conduct an in
camera inspection to evaluate the privilege objections more specifically asserted
later. Where a court orders a litigant to produce documents or produce a privilege
log without first ruling on the underlying objections defining the scope of
discovery, it has departed from the essential requirements of law. Gosman v.Luzinski, 937 So.2d 293, 296 (Fla. 4th DCA 2006); Life Care Centers of
American v. Reese, 948 So. 2d 830 (Fla. 5th DCA 2007).
4, Any and all surveillance reports, claims history reports or other investigative reports
prepared by you or on you[r] behalf with regard to the Plaintiff or Plaintiff's claim.
RESPONSE: See Defendant’s Response and objections to Request to Produce No. 3.
5. Any and all written or recorded statements of the Plaintiff, his/her agents, and/or
representatives.
RESPONSE: Objection. Overbroad and not limited in time and/or scope. As written, this
request seeks documentation that is not relevant and is not reasonably calculated
to lead to the discovery of admissible evidence. Notwithstanding and without
waiver of said objections, and to the extent this requests seeks copies of digitally
or mechanically recorded statements or transcripts of examinations under oath of
the named insureds and/or Plaintiff and/or their representatives, none.
6. Any and all statements taken by the Defendant or any witness with regards to any fact
relevant to any fact in this case.
RESPONSE: Defendant objects to the disclosure of any notes concerning what its agents,
representatives, and/or employees believes that any witness may have said with
regard to the underlying loss as same are not relevant, and not reasonably
calculated to lead to the discovery of admissible evidence and/or are protected by
the work product privilege as same constitutes said individuals’ mental
impressions. See also Defendant’s response and objections to Request for
Production No. 3.
7. Any and all police reports relating to the Plaintiff's claims which are the subject of this
litigation.
RESPONSE: Defendant is without knowledge regarding the existence or nonexistence of police
reports relating to the Plaintiff's claim at issue in this lawsuit. Defendant asserts
that it does not have any documentation responsive to this request in its
possession, custody, or control.
8. Any and all photographs and/or video of the Plaintiff's property and/or its contents.
RESPONSE: Objection. Overbroad. Not limited in time or scope. As written, this request seeks
documentation that is not relevant and is not reasonably calculated to lead to the
discovery of admissible evidence. Defendant also objects to the disclosure of
photographs in its possession concerning its agents’ or employees’ mental
impressions and/or which may contain information protected under the work
product privilege. Such documentation is not relevant or reasonably calculated to
lead to the discovery of admissible evidence and is privileged as the insurer’swork product. See also Defendant’s response and objections to Request for
Production No. 3. Notwithstanding and without waiver of said objections,
attached are photographs taken by Defendant and/or its representatives with
comments redacted (as those comments are work product and part of the insurer’s
claim file) taken in relation to the loss which is the subject of this lawsuit.
9. Any and all proof of loss forms, statements, notices of claim and/or any other documents
submitted by the Plaintiff pertaining to his/her claims that are the subject of this litigation.
RESPONSE: See documents attached to Defendant’s Response to Request for Production No.
2.
10. Any and all appraisals, estimates, or other documents pertaining to the value of Plaintiff's
claim.
RESPONSE: Objection. Vague. Unclear. Overbroad. Unduly Burdensome. As written, this
request seeks documentation that is not relevant and is not reasonably calculated
to the discovery of admissible evidence. Work Product. Notwithstanding and
without waiver of said objections, and to the extent that Defendant understands
what is being requested, all documentation responsive to this request has been
produced in Defendant’s Response to Request for Production No. 2.
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 So0.3d 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
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to Peter Mineo, Esq., using the Florida Courts E-Filing Portal, to service@mineolaw.com and
upciceservice@universalproperty.com:;; this Way of August, 2018.
GROELLE & SALMON, P.A.
Attorneys for Defendant
11301 Okeechobee Blvd., Second Floor
West Palm Beach, FL 33411
Telephone: (561) 588-3000
Facsimile: (561) 963-2265
Primary Email: gswcourtdocs@gspalaw.com
Secondary Email: cmarcks@gspalaw.com
By: Chr AL. te——~—
CELESTE B. MARCKS, ESQUIRE
Florida Bar No.: 80586
ROBERT C. GROELLE, ESQUIRE
Florida Bar No.: 829323
Preview
Filing # 75978564 E-Filed 08/03/2018 04:56:24 PM 26054 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA MONICA RADU, CASE NO.: CACE-18-002025 Plaintiffs, vs. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S RESPONSE TO PLAINTIFFS’ REQUEST FOR PRODUCTION Defendant, UNIVERSAL CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC. (“UNIVERSAL”), by and through its undersigned counsel hereby responds to Plaintiff's Request for Production and states as follows: 1. Any and all insurance policies ever issued by the Defendant to the Plaintiffs, including all declaration pages, applications, addenda and riders. RESPONSE: Objection. Overbroad and not limited in time and/or scope. Not relevant. Not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding and without waiver of said objections, Defendant asserts that it issued policy number 1501-1500-6022, to Monica Radu the “named insured”), which was effective from February 8, 2017, through February 8, 2018 (the “Policy”), for the insured property located at 1541 Hollywood Blvd., Hollywood, FL 33020, a certified copy of which is attached. 2. Any and all correspondence between you and the Plaintiff or anyone acting on the Plaintiff's behalf. RESPONSE: All correspondence between Defendant and/or its representatives and the named insured and/or the Plaintiff and/or their representatives regarding the loss that is the subject of this lawsuit has been attached. 3. Any and all correspondence, forms, reports or other documents between you and any third party regarding the Plaintiff or Plaintiff's claim. RESPONSE: Objection. Not Relevant. Work product. Not reasonably calculated to lead to the discovery of admissible evidence. This request seeks documents contained within *4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 8/3/2018 4:56:24 PM.****Defendant’s claim file. The claim file is comprised wholly of documents that are irrelevant to the issues in this pending action. 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. Kujawa v Manhattan National Life Ins. Co., 541 So.2d 1168, 1169 (Fla. 1980); State Farm v Valido, 662 So.2d 1012, 1013 (Fla. 3rd DCA 1995). Additional objection is asserted as to work product privilege. Generally, an insurer's claim and litigation files constitute work product and are protected from production. See § 90.502, Fla.Stat., Fla.R.Civ.P. 1.280(b)(3); Am. States Ins. Co. v. Kransco, 641 So.2d 175 (Fla. 5th 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. Allstate Indemnity Co. v. Ruiz, 780 So.2d 239,(Fla 4th DCA 2001). See also State Farm Florida Ins. Co. v. Aloni, 101 So. 3d 412 (Fla. 4" DCA 2012); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809 (Fla. 4" DCA 2010). In addition to the law cited above, discovery of insurer's claim file 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. Sth DCA 1996); State Farm Mutual Auto. Ins. Co. v. Cook, 744 So.2d 567, 568 (Fla. 2nd DCA 1999). Furthermore, “a trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer’s claim file, when the issue of coverage is in dispute and has not been resolved.” Nationwide Ins. Co. v. Demmo, 57 So.3d 982, 984 (Fla. 2d DCA 2011); citing to Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009). “Further, requiring the disclosure of claim file materials during the litigation of coverage issues would result in irreparable harm that cannot be adequately addressed on appeal.” Id. Also, the privilege objections of work product or attorney client cannot be deemed to be waived under the circumstances where a relevancy objection has been asserted or the discovery of the sought after documents or records are impermissible. See State Farm Florida Ins. Co. v. Kramer, 2010 Fla. App. LEXIS 10352; 35 Fla.L. Weekly D1558, quashing a trial court order compelling production of privileged materials and instructing the trial court to conduct an in camera inspection to evaluate the privilege objections more specifically asserted later. Where a court orders a litigant to produce documents or produce a privilege log without first ruling on the underlying objections defining the scope of discovery, it has departed from the essential requirements of law. Gosman v.Luzinski, 937 So.2d 293, 296 (Fla. 4th DCA 2006); Life Care Centers of American v. Reese, 948 So. 2d 830 (Fla. 5th DCA 2007). 4, Any and all surveillance reports, claims history reports or other investigative reports prepared by you or on you[r] behalf with regard to the Plaintiff or Plaintiff's claim. RESPONSE: See Defendant’s Response and objections to Request to Produce No. 3. 5. Any and all written or recorded statements of the Plaintiff, his/her agents, and/or representatives. RESPONSE: Objection. Overbroad and not limited in time and/or scope. As written, this request seeks documentation that is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding and without waiver of said objections, and to the extent this requests seeks copies of digitally or mechanically recorded statements or transcripts of examinations under oath of the named insureds and/or Plaintiff and/or their representatives, none. 6. Any and all statements taken by the Defendant or any witness with regards to any fact relevant to any fact in this case. RESPONSE: Defendant objects to the disclosure of any notes concerning what its agents, representatives, and/or employees believes that any witness may have said with regard to the underlying loss as same are not relevant, and not reasonably calculated to lead to the discovery of admissible evidence and/or are protected by the work product privilege as same constitutes said individuals’ mental impressions. See also Defendant’s response and objections to Request for Production No. 3. 7. Any and all police reports relating to the Plaintiff's claims which are the subject of this litigation. RESPONSE: Defendant is without knowledge regarding the existence or nonexistence of police reports relating to the Plaintiff's claim at issue in this lawsuit. Defendant asserts that it does not have any documentation responsive to this request in its possession, custody, or control. 8. Any and all photographs and/or video of the Plaintiff's property and/or its contents. RESPONSE: Objection. Overbroad. Not limited in time or scope. As written, this request seeks documentation that is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to the disclosure of photographs in its possession concerning its agents’ or employees’ mental impressions and/or which may contain information protected under the work product privilege. Such documentation is not relevant or reasonably calculated to lead to the discovery of admissible evidence and is privileged as the insurer’swork product. See also Defendant’s response and objections to Request for Production No. 3. Notwithstanding and without waiver of said objections, attached are photographs taken by Defendant and/or its representatives with comments redacted (as those comments are work product and part of the insurer’s claim file) taken in relation to the loss which is the subject of this lawsuit. 9. Any and all proof of loss forms, statements, notices of claim and/or any other documents submitted by the Plaintiff pertaining to his/her claims that are the subject of this litigation. RESPONSE: See documents attached to Defendant’s Response to Request for Production No. 2. 10. Any and all appraisals, estimates, or other documents pertaining to the value of Plaintiff's claim. RESPONSE: Objection. Vague. Unclear. Overbroad. Unduly Burdensome. As written, this request seeks documentation that is not relevant and is not reasonably calculated to the discovery of admissible evidence. Work Product. Notwithstanding and without waiver of said objections, and to the extent that Defendant understands what is being requested, all documentation responsive to this request has been produced in Defendant’s Response to Request for Production No. 2. 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 So0.3d 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 WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Peter Mineo, Esq., using the Florida Courts E-Filing Portal, to service@mineolaw.com and upciceservice@universalproperty.com:;; this Way of August, 2018. GROELLE & SALMON, P.A. Attorneys for Defendant 11301 Okeechobee Blvd., Second Floor West Palm Beach, FL 33411 Telephone: (561) 588-3000 Facsimile: (561) 963-2265 Primary Email: gswcourtdocs@gspalaw.com Secondary Email: cmarcks@gspalaw.com By: Chr AL. te——~— CELESTE B. MARCKS, ESQUIRE Florida Bar No.: 80586 ROBERT C. GROELLE, ESQUIRE Florida Bar No.: 829323