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Filing # 20720110 Electronically Filed 11/18/2014 05:18:32 PM
14211 IN THE CIRCUIT COURT, OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. CACE-14-016655 DIV. 02
DEBRA HINES,
Plaintiff,
vs.
HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY, INC.
a Florida Corporation,
Defendant.
/
DEFENDANT’S RESPONSE TO PLAINTIFEF’S
REQUEST FOR PRODUCTION
COMES NOW Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY
INSURANCE COMPANY (“HOMEOWNERS”), by and through its undersigned attorneys, and
hereby files its response to Plaintiff's Request for Production and states as follows:
1. Attached herein.
2. None.
3. Objection. Relevance. Work Product. All witness information will be disclosed in
Defendant’s response to Plaintiffs Interrogatories.
4. Objection. Relevance. Overbroad and unduly burdensome. Not reasonably calculated to
lead to discovery of admissible evidence.
5. Attached herein.
6. Attached herein.
7. Objection. Relevance. Work Product. Not reasonably calculated to lead to the discovery
of admissible evidence. Trade secret. Exclusive or proprietary information. Production of
** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 11/18/2014 5:18:32 PM.****claims materials is impermissible and premature pending resolution of coverage issues. See,
American Bankers Ins. Co. of Florida v. Wheeler, 711 So.2d 1347 (Fla. Sth DCA 1998).
Further, the Defendant's claim handling materials or training materials as well as its underwriting
materials or guidelines are afforded additional protection from discovery as confidential
proprietary information pursuant to Florida Statutes § 90.506., which provides:
A person has a privilege to refuse to disclose, and to prevent other persons from
disclosing, a trade secret owned by that person if the allowance of the privilege
will not conceal fraud or otherwise work injustice.
The material sought is trade secret and proprietary information. Florida Rule of Civil
Procedure 1.280 defines the permissible scope of discovery as any matter not privileged "that is
relevant to the subject matter of the pending action" and "appears reasonably calculated to lead to
the discovery of admissible evidence.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.
1995). Requests for discovery are not permissible where they are "an unwarranted intrusion of
the defendant's business as well as burdensome.” Caribbean Security Systems. Inc. v. Security
Control Systems, Inc., 486 So.2d 654, 655 (Fla. 3d DCA 1986). An insurer's claims handling
process, including internal software descriptions, the order and type of communications, and the
outcome of communications, are not relevant nor discoverable in a coverage dispute. Scottsdale
Ins. Co. v. Camara De Comercio, 813 So.2d 250 (Fla. 3rd DCA 2002). Production of claims
materials is impermissible and premature pending resolution of the coverage issues. American
Bankers Ins. Co. of Florida v Wheeler, 711 So.2d 1347(Fla. 5th DCA 1998), Also see State
Farm Florida Ins. Co. v. Gallmon, 835 So.2d 389 (Fla. 2"! 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 manuals foroperating 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 State Farm Fire & Casualty Co. v. Valido, 662 So.2d 1012
(Fla. 3d DCA 1995). To the extent that this request contemplates a request for photographs
following notice of the claimed loss, please see the attached redacted photos herein as the
adjuster’s mental impressions and notations on photographs are not relevant and otherwise work
product privilege.
8. See attached correspondence produced in response to paragraph number 6 above.
9. Objection. Relevance. Work product. 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 analysisdiffers 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.
vy. Ruiz , 780 So.2d 239,(Fla 4th DCA 2001).
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.
10. Objection. Relevance. Work product. This request seeks documents which would be
directly contained within Defendant’s claim file. See Defendant’s objection to paragraph
number 9 above.
11. Objection. Work product. Relevance. All correspondence between the parties or
representatives of the parties from the inception of the claim to date is attached. All
correspondence between the insurer and third parties is not relevant to any issue in the pending
action, or is subject to the work product privilege. 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).
Further, objection is asserted on the basis of work product and attorney client privilege.
Generally, an insurer's claim and litigation files constitute work product and are protected fromproduction. 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
vy. 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).
12. Unknown at this time. All experts will be timely disclosed in accordance with any
forthcoming trial order issued by the Court in this matter. Notwithstanding, see attached report
prepared by SDII Global Corporation as well as the Neutral Evaluation report prepared by
Darrell Hanecki, P.E.
13. Please see photographs produced in response to paragraph number 7 above.
14. Attached herein.
15. None.
16. Objection. Relevance. Work product. This request seeks documents contained within
Defendant’s claim file. See Defendant’s objection to paragraph number 9 above.
17. See all items attached in response to these Requests for Production.18. Objection. Relevance. Work Product. Not reasonably calculated to lead to discovery of
admissible evidence. This request seeks documents contained within Defendant’s claim file. See
Defendant’s objection to paragraph number 9 above.
19. See attached correspondence produced in response to paragraph number 6 above.
20. None.
21. Defendant did not issue the policy, it was assumed from Home Wise Insurance Company
therefore, applications of insurance are not in Defendant’s possession.
22. Defendant did not issue the policy, it was assumed from Home Wise Insurance Company
therefore, no underwriting inspection was performed by Defendant.
23. Objection. Relevance. Work Product. This request seeks documents contained within
Defendant’s claim file. See Defendant’s objection to paragraph number 9 above.
24. Objection. Relevance. Work Product. This request seeks documents contained within
Defendant’s claim file. See Defendant’s objection to paragraph number 9 above.
25. Objection. Relevance. Work product. Not reasonably calculated to lead to the discovery
of admissible evidence. Notwithstanding and preserving said objection, Defendant is not aware
of any personal property damage.
26. Objection. Relevance. Work product. Not reasonably calculated to lead to the discovery
of admissible evidence.
27. Objection. Relevance. Work product. Notwithstanding and preserving said objection, see
report prepared by SDII Global Corporation produced in response to request number 12 above
28. Objection. Relevance. Work product. Notwithstanding and preserving said objection, see
report prepared by SDII Global Corporation produced in response to request number 12 above29. Objection. Relevance. Work product. This request seeks documents contained within
Defendant’s claim file. See Defendant’s objection to paragraph number 9 above.
Notwithstanding said objection and preserving same, see all discoverable items attached in
response to these Requests for Production.
30. Objection. Relevance. Unduly burdensome and overbroad. Plaintiffs should have copy of
same in their possession.
31. Unknown at this time. All trial exhibits will be timely disclosed in accordance with any
forthcoming trial order issued by the Court in this matter.
A privilege log will be produced upon a Court’s ruling on the relevancy objections above.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via Electronic Mail to: Ryan Sherman, Esq., at eservicesSLPA@gmail.com, on this
18th day of November, 2014.
GROELLE & SALMON, P.A.
Attorneys for Defendant
Waterford Plaza
7650 W. Courtney Campbell Causeway
Suite 800
Tampa, Florida 33607
(813) 849-7200
(813) 849-7201 Facsimile
By: Ls Ae
ROBERT T. SCHULTE
Fla. Bar No.: 88819
Preview
Filing # 20720110 Electronically Filed 11/18/2014 05:18:32 PM 14211 IN THE CIRCUIT COURT, OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE-14-016655 DIV. 02 DEBRA HINES, Plaintiff, vs. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC. a Florida Corporation, Defendant. / DEFENDANT’S RESPONSE TO PLAINTIFEF’S REQUEST FOR PRODUCTION COMES NOW Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY (“HOMEOWNERS”), by and through its undersigned attorneys, and hereby files its response to Plaintiff's Request for Production and states as follows: 1. Attached herein. 2. None. 3. Objection. Relevance. Work Product. All witness information will be disclosed in Defendant’s response to Plaintiffs Interrogatories. 4. Objection. Relevance. Overbroad and unduly burdensome. Not reasonably calculated to lead to discovery of admissible evidence. 5. Attached herein. 6. Attached herein. 7. Objection. Relevance. Work Product. Not reasonably calculated to lead to the discovery of admissible evidence. Trade secret. Exclusive or proprietary information. Production of ** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 11/18/2014 5:18:32 PM.****claims materials is impermissible and premature pending resolution of coverage issues. See, American Bankers Ins. Co. of Florida v. Wheeler, 711 So.2d 1347 (Fla. Sth DCA 1998). Further, the Defendant's claim handling materials or training materials as well as its underwriting materials or guidelines are afforded additional protection from discovery as confidential proprietary information pursuant to Florida Statutes § 90.506., which provides: A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. The material sought is trade secret and proprietary information. Florida Rule of Civil Procedure 1.280 defines the permissible scope of discovery as any matter not privileged "that is relevant to the subject matter of the pending action" and "appears reasonably calculated to lead to the discovery of admissible evidence.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). Requests for discovery are not permissible where they are "an unwarranted intrusion of the defendant's business as well as burdensome.” Caribbean Security Systems. Inc. v. Security Control Systems, Inc., 486 So.2d 654, 655 (Fla. 3d DCA 1986). An insurer's claims handling process, including internal software descriptions, the order and type of communications, and the outcome of communications, are not relevant nor discoverable in a coverage dispute. Scottsdale Ins. Co. v. Camara De Comercio, 813 So.2d 250 (Fla. 3rd DCA 2002). Production of claims materials is impermissible and premature pending resolution of the coverage issues. American Bankers Ins. Co. of Florida v Wheeler, 711 So.2d 1347(Fla. 5th DCA 1998), Also see State Farm Florida Ins. Co. v. Gallmon, 835 So.2d 389 (Fla. 2"! 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 manuals foroperating 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 State Farm Fire & Casualty Co. v. Valido, 662 So.2d 1012 (Fla. 3d DCA 1995). To the extent that this request contemplates a request for photographs following notice of the claimed loss, please see the attached redacted photos herein as the adjuster’s mental impressions and notations on photographs are not relevant and otherwise work product privilege. 8. See attached correspondence produced in response to paragraph number 6 above. 9. Objection. Relevance. Work product. 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 analysisdiffers 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. vy. Ruiz , 780 So.2d 239,(Fla 4th DCA 2001). 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. 10. Objection. Relevance. Work product. This request seeks documents which would be directly contained within Defendant’s claim file. See Defendant’s objection to paragraph number 9 above. 11. Objection. Work product. Relevance. All correspondence between the parties or representatives of the parties from the inception of the claim to date is attached. All correspondence between the insurer and third parties is not relevant to any issue in the pending action, or is subject to the work product privilege. 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). Further, objection is asserted on the basis of work product and attorney client privilege. Generally, an insurer's claim and litigation files constitute work product and are protected fromproduction. 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 vy. 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). 12. Unknown at this time. All experts will be timely disclosed in accordance with any forthcoming trial order issued by the Court in this matter. Notwithstanding, see attached report prepared by SDII Global Corporation as well as the Neutral Evaluation report prepared by Darrell Hanecki, P.E. 13. Please see photographs produced in response to paragraph number 7 above. 14. Attached herein. 15. None. 16. Objection. Relevance. Work product. This request seeks documents contained within Defendant’s claim file. See Defendant’s objection to paragraph number 9 above. 17. See all items attached in response to these Requests for Production.18. Objection. Relevance. Work Product. Not reasonably calculated to lead to discovery of admissible evidence. This request seeks documents contained within Defendant’s claim file. See Defendant’s objection to paragraph number 9 above. 19. See attached correspondence produced in response to paragraph number 6 above. 20. None. 21. Defendant did not issue the policy, it was assumed from Home Wise Insurance Company therefore, applications of insurance are not in Defendant’s possession. 22. Defendant did not issue the policy, it was assumed from Home Wise Insurance Company therefore, no underwriting inspection was performed by Defendant. 23. Objection. Relevance. Work Product. This request seeks documents contained within Defendant’s claim file. See Defendant’s objection to paragraph number 9 above. 24. Objection. Relevance. Work Product. This request seeks documents contained within Defendant’s claim file. See Defendant’s objection to paragraph number 9 above. 25. Objection. Relevance. Work product. Not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding and preserving said objection, Defendant is not aware of any personal property damage. 26. Objection. Relevance. Work product. Not reasonably calculated to lead to the discovery of admissible evidence. 27. Objection. Relevance. Work product. Notwithstanding and preserving said objection, see report prepared by SDII Global Corporation produced in response to request number 12 above 28. Objection. Relevance. Work product. Notwithstanding and preserving said objection, see report prepared by SDII Global Corporation produced in response to request number 12 above29. Objection. Relevance. Work product. This request seeks documents contained within Defendant’s claim file. See Defendant’s objection to paragraph number 9 above. Notwithstanding said objection and preserving same, see all discoverable items attached in response to these Requests for Production. 30. Objection. Relevance. Unduly burdensome and overbroad. Plaintiffs should have copy of same in their possession. 31. Unknown at this time. All trial exhibits will be timely disclosed in accordance with any forthcoming trial order issued by the Court in this matter. A privilege log will be produced upon a Court’s ruling on the relevancy objections above. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail to: Ryan Sherman, Esq., at eservicesSLPA@gmail.com, on this 18th day of November, 2014. GROELLE & SALMON, P.A. Attorneys for Defendant Waterford Plaza 7650 W. Courtney Campbell Causeway Suite 800 Tampa, Florida 33607 (813) 849-7200 (813) 849-7201 Facsimile By: Ls Ae ROBERT T. SCHULTE Fla. Bar No.: 88819