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Filing # 35171092 E-Filed 12/04/2015 01:47:47 PM
17175 IN THE CIRCUIT COURT OF THE 17"
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
JORGE CASAL
CASE NO.: CACE-15-017744 DIV: 14
Petitioner ,
vs.
HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY,
Respondent.
RESPONDENT'S RESPONSE TO PETITIONER’S REQUEST FOR PRODUCTION
Respondent, HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE
COMPANY (“HOMEOWNERS CHOICE”), by and through the undersigned counsel, hereby
files its response to Petitioner’s Request for Production and states as follows:
1. Any and all insurance policies issued by you that would inure to the benefit of the
Insureds, together with any declaration of coverage page(s) and the sworn statement of a
corporate officer attesting to the authenticity of the policy.
RESPONSE: Attached
2. Any correspondence or documentation that establishes the date and manner that the
subject loss was initially reported to you or your representatives(s) by the Insureds or the
Insureds’ representatives.
RESPONSE: Objection. Not. Relevant. Work product. Documents requested would be
part of the 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).
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 12/4/2015 1:47:48 PM.****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).
Notwithstanding and preserving said objection, HOMEOWNERS CHOICE received its
first notice of this loss from the insured’s public adjuster on January 13, 2014.
3. Any correspondence or documentation that establishes what the Insureds’ or the
Insureds’ representative(s) initially reported to you or your representative(s) with regard to the
date and description of the subject loss.
RESPONSE: Sce Respondent’s Response to Request No. 2.
4. All Proof of Loss forms pertaining to the subject loss that were sent or received by you or
your representatives to or from the Insured or the Insured’ representatives.
RESPONSE: None.
5. All correspondence sent by you or your representatives to the Insureds or Insureds’
representatives to advise of your determination(s) with regard to the availability of coverage
RESPONSE: Attached.
6. All correspondence sent by you or your representatives to the Insureds or Insureds’
representatives in response to a request for mediation or appraisal of the subject claim.
RESPONSE: Not applicable.7. All correspondence sent by your or your representatives to the Insureds or Insureds’
representatives advising of the Insureds’ right to participate in mediation in accordance with
Florida Statute § 627.701 5(2).
RESPONSE: Attached.
8. To the extent not already provided in response to preceding requests, all correspondence
(including attachments) pertaining to the subject loss that was sent by you or your representatives
to the Insureds or the Insureds’ representatives.
RESPONSE: Attached.
9. All correspondence or documentation that establishes or evidences the date you began
anticipating there would be litigation arising out of the subject claim.
RESPONSE: See Respondent’s Response to Request No. 2.
10. All correspondence (including attachments) pertaining to the subject loss that was
received by you or your representatives from the Insureds or the Insureds’ representatives.
RESPONSE: Attached.
11. All correspondence (including attachments) pertaining to the subject loss that was sent or
received by you or your representatives to or from any third parties except your attorney.
RESPONSE: Objection. Work Product. This request includes information not relevant
to the issues asserted in the breach of contract claim; and is not anticipated to lead to the
discovery of admissible evidence. All correspondence between the parties or
representatives of the parties from inception of claim to date is attached.
12 Transcripts and any and all audio recordings of all recorded statements or Examinations
Under Oath taken by you or your representatives in connection with the subject loss.
RESPONSE: None.13. All documents or graphic materials that were marked as exhibits, referenced or reviewed
on the record during Examinations Under Oath conducted by you or your representatives in
connection with the subject loss.
RESPONSE: Not Applicable.
14. All affidavits or sworn statements in your possession pertaining to the subject loss.
RESPONSE: None.
1S. All documentation evidencing the date, time and subject matter of phone calls pertaining
to the subject loss that were made or received by you or your representatives to or from the
Insureds or the Insureds' representatives. 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.
RESPONSE: See Respondent’s Response to Request No. 2.
16. All documentation evidencing the date, time and subject matter of phone calls pertaining
to the subject loss that were made or received by you or your representatives to or from any third
parties other than your attorney(ies). 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.
RESPONSE: See Respondent’s Response to Request No. 2.
17. All inspection reports or other documents that evidence the cause of the loss at issue in
the subject claim as determined by you or your representatives.
RESPONSE: See Respondent’s Response to Request No.’s 2 and 5.
18. All inspection reports or other documents that evidence the cause of the loss at issue in
the subject claim as determined by the Insureds or the Insureds' representatives.RESPONSE: None in HOMEOWNERS CHOICE’s possession.
19. To the extent not already provided in response to the preceding requests, all reports
resulting from inspections, appraisals, analyses or reviews performed in connection with the
subject loss by engineers, scientists, appraisers, contractors, accountants, or any other consultants
or experts retained by your or your representatives.
RESPONSE: See Respondent’s Response to Request No. 2. Notwithstanding and
preserving said objection, please see report prepared by Conestoga-Rovers & Associates
produced in response to Request No. 5.
20. All estimates of damages prepared by any individual who inspected the property on
behalf of Respondent, with respect to the claim of loss at issue in this matter.
RESPONSE: Objection. Work Product. Not anticipated to lead to the discovery of
admissible evidence relevant to any claim asserted in the Complaint.
21, All inspection reports or other materials pertaining to the cause of the damages at issue in
the subject claim that were prepared by neutral, disinterested parties representing neither you nor
the Insureds.
RESPONSE: None.
22. All photographs, video, diagrams, plans or other graphic representations portraying the
subject Property or any portion thereof which were taken or prepared before the alleged date of
the subject loss.
RESPONSE: See Response to Request No. 2. Not Relevant. At issue in this matter is
whether UNITED breached the insurance contract by failing to pay monies allegedly due
to the Plaintiffs pursuant to the terms, conditions and exclusions of the policy and its
endorsements. The underwriting file has no relevance to the claim asserted in the
Complaint.
23, All photographs, video, diagrams, plans or other graphic representations portraying the
subject Property or any portion thereof which were taken or prepared after the alleged date of the
subject loss.RESPONSE: Objection. Work Product. Notwithstanding and preserving said objection,
see attached redacted photographs (as redacted comments constitute privileged work
product
24. All correspondence, documents, photographs and video pertaining to any previous
insurance claim(s) made by the Insureds or by previous owners of the subject Property that were
reviewed by you or your representatives in the course of investigating the instant claim.
RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to
the discovery of admissible evidence relevant to any claim asserted in the Complaint.
25. All application(s) for insurance submitted by or on behalf of the Insureds to you or your
representatives in connection with obtaining or renewing the subject Policy.
RESPONSE: See Respondent's Response to Request No. 21
26. All inspection reports prepared by or for you or your representatives in connection with
the initial issuance or renewal of the subject Policy.
RESPONSE: See Respondent’s Response to Request No. 21
27. All photographs or video taken by or for you or your representatives in connection with
the initial issuance or renewal of the subject Policy.
RESPONSE: See Respondent’s Response to Request No. 21
28. To the extent not already provided in response to preceding requests, all inspection
reports, appraisals, photographs, video or other documents or materials in your possession that
evidence or pertain to the condition of the subject Property or any portion thereof prior to the
subject date of loss.
RESPONSE: See Respondent’s Response to Request No. 21.
29. A current curriculum vitae or resume for each person (other than independent adjusters)
retained on your behalf for the purpose of rendering an opinion as to the cause of the loss.
RESPONSE: Objection. This request is premature. HOMEOWNERS CHOICE will
disclose its trial experts in accordance with the Court’s trial order.30. A copy of the “ISO” report pertaining to all property insurance claims filed by the
Petitioners at the subject property at issue in this litigation.
RESPONSE: See Respondent’s Response to Request No. 2. Not Relevant. Not
anticipated to lead to the discovery of admissible evidence relevant to any claim asserted
in the Complaint.
31. Any correspondence sent by you or your representative(s) to the Insured or the Insured’s
representatives with respect to any insurance claims filed by the Petitioner with Respondent prior
to the inception of this lawsuit.
RESPONSE: See Respondent's Response to Request No. 2, Not Relevant. Not
anticipated to lead to the discovery of admissible evidence relevant to any claim asserted
in the Complaint.
32, Any correspondence sent by the Insureds or their representative(s) to the Respondent or
its representatives with respect to any insurance claims filed by the Petitioner with Respondent
prior to the inception of the instant lawsuit.
RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to
the discovery of admissible evidence relevant to any claim asserted in the Complaint.
33. All estimates of damages prepared by the Respondent in connection with any property
damage claim filed by Petitioner, which related to damages claimed by Petitioners in the instant
lawsuit.
RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to
the discovery of admissible evidence relevant to any claim asserted in the Complaint.
34, All photographs, video, diagrams, plans or other graphic representation portraying the
subject property or any portion thereof with respect to any insurance claims filed by Petitioner
with Respondent prior to the inception of the instant lawsuit.
RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to
the discovery of admissible evidence relevant to any claim asserted in the Complaint.35 A privilege log accounting for all responsive materials being withheld from production
on the basis of privilege or protection, in accordance with Florida law.
RESPONSE: Objection, the request of the Privilege Log is premature until the
determination of relevancy has been made.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to: Harold Levy, Esquire, Service@HLLawGroup.com, HL Law Group, P.A., by electronic
mail on this day of December, 2015.
GROELLE & SALMON, P.A.
Attorneys for Defendant
Ponce Centre
11301 Okeechobee Boulevard, 2"? Floor
West Palm Beach, Flori 3341
(561) 963-5500 Te he
(561) 963-2265 F, ie
f
> SSELL, ESQUIRE
Fla. Bar No. 649511
Primary E-Mail Address:
gsWcourtdocs@gspalaw.com
Secondary E-Mail Address:
mrussell@gspalaw.com
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Filing # 35171092 E-Filed 12/04/2015 01:47:47 PM 17175 IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA JORGE CASAL CASE NO.: CACE-15-017744 DIV: 14 Petitioner , vs. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, Respondent. RESPONDENT'S RESPONSE TO PETITIONER’S REQUEST FOR PRODUCTION Respondent, HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY (“HOMEOWNERS CHOICE”), by and through the undersigned counsel, hereby files its response to Petitioner’s Request for Production and states as follows: 1. Any and all insurance policies issued by you that would inure to the benefit of the Insureds, together with any declaration of coverage page(s) and the sworn statement of a corporate officer attesting to the authenticity of the policy. RESPONSE: Attached 2. Any correspondence or documentation that establishes the date and manner that the subject loss was initially reported to you or your representatives(s) by the Insureds or the Insureds’ representatives. RESPONSE: Objection. Not. Relevant. Work product. Documents requested would be part of the 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). *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 12/4/2015 1:47:48 PM.****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). Notwithstanding and preserving said objection, HOMEOWNERS CHOICE received its first notice of this loss from the insured’s public adjuster on January 13, 2014. 3. Any correspondence or documentation that establishes what the Insureds’ or the Insureds’ representative(s) initially reported to you or your representative(s) with regard to the date and description of the subject loss. RESPONSE: Sce Respondent’s Response to Request No. 2. 4. All Proof of Loss forms pertaining to the subject loss that were sent or received by you or your representatives to or from the Insured or the Insured’ representatives. RESPONSE: None. 5. All correspondence sent by you or your representatives to the Insureds or Insureds’ representatives to advise of your determination(s) with regard to the availability of coverage RESPONSE: Attached. 6. All correspondence sent by you or your representatives to the Insureds or Insureds’ representatives in response to a request for mediation or appraisal of the subject claim. RESPONSE: Not applicable.7. All correspondence sent by your or your representatives to the Insureds or Insureds’ representatives advising of the Insureds’ right to participate in mediation in accordance with Florida Statute § 627.701 5(2). RESPONSE: Attached. 8. To the extent not already provided in response to preceding requests, all correspondence (including attachments) pertaining to the subject loss that was sent by you or your representatives to the Insureds or the Insureds’ representatives. RESPONSE: Attached. 9. All correspondence or documentation that establishes or evidences the date you began anticipating there would be litigation arising out of the subject claim. RESPONSE: See Respondent’s Response to Request No. 2. 10. All correspondence (including attachments) pertaining to the subject loss that was received by you or your representatives from the Insureds or the Insureds’ representatives. RESPONSE: Attached. 11. All correspondence (including attachments) pertaining to the subject loss that was sent or received by you or your representatives to or from any third parties except your attorney. RESPONSE: Objection. Work Product. This request includes information not relevant to the issues asserted in the breach of contract claim; and is not anticipated to lead to the discovery of admissible evidence. All correspondence between the parties or representatives of the parties from inception of claim to date is attached. 12 Transcripts and any and all audio recordings of all recorded statements or Examinations Under Oath taken by you or your representatives in connection with the subject loss. RESPONSE: None.13. All documents or graphic materials that were marked as exhibits, referenced or reviewed on the record during Examinations Under Oath conducted by you or your representatives in connection with the subject loss. RESPONSE: Not Applicable. 14. All affidavits or sworn statements in your possession pertaining to the subject loss. RESPONSE: None. 1S. All documentation evidencing the date, time and subject matter of phone calls pertaining to the subject loss that were made or received by you or your representatives to or from the Insureds or the Insureds' representatives. 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. RESPONSE: See Respondent’s Response to Request No. 2. 16. All documentation evidencing the date, time and subject matter of phone calls pertaining to the subject loss that were made or received by you or your representatives to or from any third parties other than your attorney(ies). 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. RESPONSE: See Respondent’s Response to Request No. 2. 17. All inspection reports or other documents that evidence the cause of the loss at issue in the subject claim as determined by you or your representatives. RESPONSE: See Respondent’s Response to Request No.’s 2 and 5. 18. All inspection reports or other documents that evidence the cause of the loss at issue in the subject claim as determined by the Insureds or the Insureds' representatives.RESPONSE: None in HOMEOWNERS CHOICE’s possession. 19. To the extent not already provided in response to the preceding requests, all reports resulting from inspections, appraisals, analyses or reviews performed in connection with the subject loss by engineers, scientists, appraisers, contractors, accountants, or any other consultants or experts retained by your or your representatives. RESPONSE: See Respondent’s Response to Request No. 2. Notwithstanding and preserving said objection, please see report prepared by Conestoga-Rovers & Associates produced in response to Request No. 5. 20. All estimates of damages prepared by any individual who inspected the property on behalf of Respondent, with respect to the claim of loss at issue in this matter. RESPONSE: Objection. Work Product. Not anticipated to lead to the discovery of admissible evidence relevant to any claim asserted in the Complaint. 21, All inspection reports or other materials pertaining to the cause of the damages at issue in the subject claim that were prepared by neutral, disinterested parties representing neither you nor the Insureds. RESPONSE: None. 22. All photographs, video, diagrams, plans or other graphic representations portraying the subject Property or any portion thereof which were taken or prepared before the alleged date of the subject loss. RESPONSE: See Response to Request No. 2. Not Relevant. At issue in this matter is whether UNITED breached the insurance contract by failing to pay monies allegedly due to the Plaintiffs pursuant to the terms, conditions and exclusions of the policy and its endorsements. The underwriting file has no relevance to the claim asserted in the Complaint. 23, All photographs, video, diagrams, plans or other graphic representations portraying the subject Property or any portion thereof which were taken or prepared after the alleged date of the subject loss.RESPONSE: Objection. Work Product. Notwithstanding and preserving said objection, see attached redacted photographs (as redacted comments constitute privileged work product 24. All correspondence, documents, photographs and video pertaining to any previous insurance claim(s) made by the Insureds or by previous owners of the subject Property that were reviewed by you or your representatives in the course of investigating the instant claim. RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to the discovery of admissible evidence relevant to any claim asserted in the Complaint. 25. All application(s) for insurance submitted by or on behalf of the Insureds to you or your representatives in connection with obtaining or renewing the subject Policy. RESPONSE: See Respondent's Response to Request No. 21 26. All inspection reports prepared by or for you or your representatives in connection with the initial issuance or renewal of the subject Policy. RESPONSE: See Respondent’s Response to Request No. 21 27. All photographs or video taken by or for you or your representatives in connection with the initial issuance or renewal of the subject Policy. RESPONSE: See Respondent’s Response to Request No. 21 28. To the extent not already provided in response to preceding requests, all inspection reports, appraisals, photographs, video or other documents or materials in your possession that evidence or pertain to the condition of the subject Property or any portion thereof prior to the subject date of loss. RESPONSE: See Respondent’s Response to Request No. 21. 29. A current curriculum vitae or resume for each person (other than independent adjusters) retained on your behalf for the purpose of rendering an opinion as to the cause of the loss. RESPONSE: Objection. This request is premature. HOMEOWNERS CHOICE will disclose its trial experts in accordance with the Court’s trial order.30. A copy of the “ISO” report pertaining to all property insurance claims filed by the Petitioners at the subject property at issue in this litigation. RESPONSE: See Respondent’s Response to Request No. 2. Not Relevant. Not anticipated to lead to the discovery of admissible evidence relevant to any claim asserted in the Complaint. 31. Any correspondence sent by you or your representative(s) to the Insured or the Insured’s representatives with respect to any insurance claims filed by the Petitioner with Respondent prior to the inception of this lawsuit. RESPONSE: See Respondent's Response to Request No. 2, Not Relevant. Not anticipated to lead to the discovery of admissible evidence relevant to any claim asserted in the Complaint. 32, Any correspondence sent by the Insureds or their representative(s) to the Respondent or its representatives with respect to any insurance claims filed by the Petitioner with Respondent prior to the inception of the instant lawsuit. RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to the discovery of admissible evidence relevant to any claim asserted in the Complaint. 33. All estimates of damages prepared by the Respondent in connection with any property damage claim filed by Petitioner, which related to damages claimed by Petitioners in the instant lawsuit. RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to the discovery of admissible evidence relevant to any claim asserted in the Complaint. 34, All photographs, video, diagrams, plans or other graphic representation portraying the subject property or any portion thereof with respect to any insurance claims filed by Petitioner with Respondent prior to the inception of the instant lawsuit. RESPONSE: See Response to Request No. 2. Not Relevant. Not anticipated to lead to the discovery of admissible evidence relevant to any claim asserted in the Complaint.35 A privilege log accounting for all responsive materials being withheld from production on the basis of privilege or protection, in accordance with Florida law. RESPONSE: Objection, the request of the Privilege Log is premature until the determination of relevancy has been made. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to: Harold Levy, Esquire, Service@HLLawGroup.com, HL Law Group, P.A., by electronic mail on this day of December, 2015. GROELLE & SALMON, P.A. Attorneys for Defendant Ponce Centre 11301 Okeechobee Boulevard, 2"? Floor West Palm Beach, Flori 3341 (561) 963-5500 Te he (561) 963-2265 F, ie f > SSELL, ESQUIRE Fla. Bar No. 649511 Primary E-Mail Address: gsWcourtdocs@gspalaw.com Secondary E-Mail Address: mrussell@gspalaw.com