Preview
Filing # 117827596 E-Filed 12/08/2020 11:47:26 AM
IN THE CIRCUIT COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN
AND FOR BAY COUNTY, FLORIDA
CASE NO.: 19004406CA
JAMES R. SMITH and TESSA SMITH,
Plaintiffs,
Vv.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO OVERRULE
DEFENDANT’S OBJECTIONS AND TO COMPEL DISCOVERY BY WAY OF
DEPOSITIONS AND REQUEST FOR PRODUCTION
COMES NOW Defendant, SECURITY FIRST INSURANCE COMPANY, by and
through their undersigned counsel, and pursuant to the Florida Rule of Civil Procedure
1.280 and 1.380 hereby file its Response to Plaintiff's Motion to Overrule Defendant's
Objections and to Compel Discovery by Way of Depositions and Request for Production,
and for grounds therefore state:
1. On February 21, 2020, Defendant served its responses to Plaintiff's initial Request
for Production.
2. On December 1, 2020, Plaintiffs filed their Motion to Overrule Defendant's
Objections and to Compel Discovery by Way of Depositions and Request for
Production.
3. Plaintiffs raise objections to the following of Defendant's objections:
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA
A few of the requests sought any and all estimates prepared by the
Defendant and/or any third party on behalf of the Defendant; any
photographs taken by the Defendant and/or third party; and a copy of the
underwriting file for the insurance policy issued to Plaintiff. See Plaintiff's
Motion to Overrule attached hereto as Exhibit A.
4. Defendant responded to the above-referenced requests as follows:
5. Request #4: Any and all estimates prepared by Defendant, or any representative,
employee and/or agent thereof, for repair or replacement of any damage on the
subject property prior to the filing of this action.
RESPONSE: Objection. This request is overbroad and
seeks irrelevant and improper “bad faith” discovery of
claim file and claim handling materials, and work-product
privileged and protected documentation contained in the
claim file. See Defendant’s Privilege Log filed
contemporaneously herein. Notwithstanding and without
waiving said objection, please see attached any non-
privileged responsive documents.
6. Request #6: Any and all photographs of the damages and/or the cause of damages
taken during any inspection by Defendant, or any representative, employee and/or
agent thereof.
RESPONSE: Objection. This request is overbroad and
seeks irrelevant and improper “bad faith” discovery of
claim file and claim handling materials, and work-product
-2-
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA
privileged and protected documentation contained in the
claim file. See Defendant’s Privilege Log filed
contemporaneously herein. Notwithstanding and without
waiving said objection, please see attached any non-
privileged responsive documents.
7. Request #13: A copy of the entire underwriting file for the insurance policy issued
by Defendant to Plaintiff for the property located at 7401 W. Highway 98, Port St.
Joe, FL 32456.
RESPONSE: Objection. This request is overbroad and
seeks irrelevant and improper “bad faith” discovery of
claim file and claim handling materials, and work-product
privileged and protected documentation contained in the
claim file. See Defendant’s Privilege Log filed
contemporaneously herein. Defendant objected to the
request regarding a copy of the underwriting file as
irrelevant and improper “bad faith” discovery.
8. Plaintiff has also objected to Defendant’s Privilege Log in its entirety.
MEMORANDUM OF LAW
A. The Issues of Liability, Coverage, and/or Damages Have Not Been Determined
Florida courts have held that until the issues of coverage, liability, and/or
damages have been finally determined, discovery requests related to the “claims file or
insurer's business policies or practices regarding handling of these claims” are facially
improper and a party is not entitled to them. State Farm Mut. Auto. Ins. Co. v.
-3-
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA
Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); see also State Farm v. O'Hearn,
975 So. 2d 633, 637 (Fla. 2d DCA 2008)
As this case is still in litigation, the issues of coverage, liability, and/or damages
have not been finally determined. Therefore, Plaintiff is not entitled to discovery related
to Defendant's claim file and/or business policies or practices. This includes Plaintiffs’
requests regarding any and all estimates prepared by Defendant or a third party, any
photographs taken of the subject property by Defendant or by a third-party, and
Defendant's complete underwriting file.
B. Plaintiff is Not Asserting a Bad Faith Claim
Plaintiff's Complaint sets out in Count | that they are seeking relief under a Breach
of Contract claim. See Plaintiff's Complaint attached hereto as Exhibit B. Plaintiff is not
asserting or alleging bad faith in the instant action. As Plaintiff seeks relief under breach
of contract and is not pursuing a bad faith claim, the disclosure of the contents of an
insurer's claim file departs from the essential requirements of the law. Seminole Cas. Ins.
Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009) (holding that 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 and...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.)
Plaintiffs also object to Defendant's Privilege Log in its entirety and state that
because the documents were created prior to the filing date of the instant lawsuit, they
are not afforded the work-product privilege. However, Defendant’s objections are not
-4-
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA
solely based on the work-product privilege. Defendant also lists the documents as “claim
file’ materials in Defendant's Privilege Log. As stated and supported previously, an
Insurer is entitled to protection of its claim handling and claim file documents prior to a
final determination of coverage, liability, and/or damages. Defendant also objected on the
grounds that Plaintiffs’ requests are overbroad and seek irrelevant and improper “bad
faith” discovery of claim file and claim handling materials. See Defendant’s Responses to
Plaintiff's Request for Production attached hereto as Exhibit C.
In Nationwide Ins. Co. of Florida v. Denmo, 57 So.3d 982 (Fla. 2d DCA 2011), the
court held that the trial court had improperly granted a Motion to Compel by focusing on
the question of what is and what is not work product. The determinative issue turns on
what type of action Plaintiff brought. Here, as in Denmo, Plaintiff is not pursuing a bad
faith claim but rather seeks relief for breach of contract. The court held that an insurer
cannot be compelled in disclosing its claim file contents when the issue of coverage,
liability, and/or damages is in dispute and has not been resolved.
Plaintiffs’ overbroad requests are improper under Florida law as they directly relate
to Defendant’s claims file, claims handling, policies, protocol, and/or practices when no
determination of coverage, liability, and/or damages has been made nor have Plaintiffs
sought relief under a bad faith action.
Cc. Conclusion
As Plaintiffs are not seeking relief under a bad faith claim, their discovery requests
regarding Defendant's claims file and claims handling materials, policies, practices, or
protocols are irrelevant and improper. There are also still issues currently in litigation
regarding coverage, liability, and/or damages that have not been finally determined.
-5-
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA
Therefore, as stated and supported above, Plaintiffs are not entitled to discovery related
to claims file and claims handling materials, policies, practices, or protocols
WHEREFORE, the Defendant, SECURITY FIRST INSURANCE COMPANY,
requests this Honorable Court to deny Plaintiffs’ Motion to Overrule Defendant’s
Objections and to Compel Discovery by Way of Depositions or Discovery and sustain
Defendant’s objections.
[CERTIFICATE OF SERVICE ON FOLLOWING PAGE]
-6-
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 8th day of December, 2020, a true and correct
copy of the foregoing was filed with the Clerk of Bay County by using the Florida Courts
e-Filing Portal, which will send an automatic e-mail message to the following parties
registered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie,
2665 S. Bayshore Drive, Suite 601, Coconut Grove, FL 33133, justin@kendalllaw.com,
justing@kkpfirm.com, jenni@kkpfirm.com.
By:
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant
4301 West Boy Scout Boulevard
Suite 400
Tampa, Florida 33607
Telephone (813) 509-2686
Facsimile (813) 286-2900
Primary e-mail: paydon.broeder@csklegal.com
Secondary e-mail:
katherine.moran@csklegal.com
Alternative e-mail:
michael.schweitzer@csklegal.com
s/ Katherine L. Moran
KATHERINE L. MORAN
Florida Bar No.: 1018653
PAYDON R. BROEDER
Florida Bar No.: 106881
-7-
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXFiling # 117450709 E-Filed 12/01/2020 02:25:15 PM EXHIBIT A
IN THE CIRCUIT COURT OF THE 14”
JUDICIAL CIRCUIT IN AND FOR
BAY COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NUMBER: 19004406CA
JAMES R. SMITH,
Plaintiff,
vs.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
/
PLAINTIFF’S MOTION TO OVERRULE
DEFENDANT’S OBJECTIONS AND TO COMPEL DISCOVERY BY WAY OF
DEPOSITIONS AND REQUEST FOR PRODUCTION
COMES NOW, the Plaintiff, JAMES R. SMITH, (the “Plaintiff”), by and through the
undersigned counsel and pursuant to the applicable rules of Civil Procedure move this Honorable
Court to overrule Defendant’s objections and compel discovery of the documents listed within
Defendant, SECURITY FIRST INSURANCE COMPANY’S, (the “Defendant”), Privilege Log.
In support thereof, the Plaintiffs allege:
1. On or about January 8, 2020, the Plaintiff served the Defendant with its First Request
for Production relating to a dispute as to the proper actual cash value of Plaintiff's
homeowner’s insurance claim.
2. A few of the requests sought any and all estimates prepared by the Defendant and/or
any third party on behalf of the Defendant; any photographs taken by the Defendant
and/or third party on behalf of the Defendant; and a copy of the underwriting file for
the insurance policy issued to the Plaintiff.3. On February 21, 2020, the Defendant filed its responses to Plaintiff's Request for
Production.
4. The Defendant raised numerous objections to Plaintiffs requests, claiming the
requests were “overbroad, irrelevant, and improper ‘bad faith’ discovery of claim file
and claim handling...” The Defendant additionally filed its Privilege Log listing the
following as privileged under “claim file/work product:”
a. Field Adjuster Report, dated 10/29/18;
b. Field Adjuster Estimate, dated 11/18/18;
c. Field Adjuster Invoice, dated 11/20/18;
d. Third Party Estimate, dated 12/17/18;
e. Claim Journal, multiple dates;
f. Unredacted Photographs; dated 10/29/18.
A copy of the Defendant’s Privilege Log is attached hereto as Exhibit “A.”
5. It should be noted that the filing of this suit did not occur until December 4, 2019.
6. Additionally, on October 5, 2020, the Defendant filed Protective Orders for the
depositions of 1) the Defendant’s Corporate Representative; 2) the Defendant’s Desk
Adjuster on this matter; and 3) the Defendant’s Field Adjuster on this matter. See
Defendant’s Motions for Protective Order, attached hereto as Composite Exhibit
“A”
7. The Plaintiff is requesting documents not in hopes of conducting ‘bad faith’ discovery
of claim handling, but to obtain information created in the ordinary course and scope
of business of the Defendant. Therefore, not done in preparation of litigation and
consequently not privileged.MEMORANDUM OF LAW IN SUPPORT
A. General Principles of Discovery
The scope of discovery is set forth in Fla. R. Civ. P. 1.280(b). Courts employ a liberal
discovery standard in keeping with the spirit and purpose of the discovery rules. An essential
tenet of Florida's discovery rules is that broad discovery is permitted “...in order to advance the
State's important interest in the fair resolution of disputes....” Alterra Healthcare Corporation v.
Estate of Shelley, 837 So. 2d 936, 945 (Fla. 2002). A party may obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter's pending actions. See Fla. R. Civ. P.
1.280(b). Requests are relevant if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence. /d. “An objection that a discovery request is irrelevant
and not reasonably calculated to lead to admissible evidence must include a specific
explanation describing why the request lacks relevance and why the information sought
will not reasonably lead to admissible evidence.” Consumer Electronics Ass'n v. Compras and
Buys Magazine, Inc., 2008 WL 4327253 (S.D. Fla. Sept. 18, 2008). Additionally, “[t]he burden
of showing that the requested discovery is not relevant to the issues in the case is on the party
resisting discovery.” /d. (citing Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D. N.C. 1978)); see
also Carson v. City of Fort Lauderdale, 173 So .2d 743, 744 (2d DCA 1965).
Security First has failed to include specific explanations describing why Mr. Smith’s
areas of inquiry lack relevance or why the categories will not lead to admissible evidence and
therefore its objections are improper and unfounded.
B. Documents Created during the Ordinary Course of Evaluating a
Claim are not Work-Product
Work product protection only applies to documents and things prepared in anticipation of
litigation. See Grinnell Corp. v. The Palms 2100 Ocean Blvd., Ltd., 924 So. 2d 887, 891. In theinsurance context, documents produced in the ordinary course of an insurer's investigation of a
claim are not entitled to work product protection. See Allstate Indemnity Company v. Ruiz, 899
So. 2d 1121, 1123 (Fla. 2005) (affirming the district court's holding that various statements,
computer diaries, adjuster entries, and a memorandum exchanged between an adjuster and her
supervisor were not protected work product because they were prepared during the normal
course of the claim investigation and not in anticipation of litigation); Nationwide Mut. Fire Ins.
Co. v. Harmon, 580 So. 2d 192 (Fla. 4th DCA 1991) (holding that insurer failed to establish that
work product privilege shielded documents sought by insureds because insurer failed to show
that materials were prepared in anticipation of litigation rather than in the normal course of
evaluating the insureds’ claim); Cotton State Mut. Ins. Co. v. Turtle Reef Assoc., Inc., 444 So. 2d
595 (Fla. 4th DCA 1984) (finding that an insurance company's claims investigation in its early
stages is conducted in the ordinary course of business and does not constitute work product);
Marshalls of MA, Inc. y. Minsal, 932 So. 2d 444 (Fla. 3" DCA 2006) (holding that reports
prepared solely for a purpose other than litigation are not protected by work-product).
C. How Florida Courts Determine Which Documents are Afforded Protection
Federal courts in this district (applying Florida law) have developed a guideline for
purposes of determining when documents will be deemed to have been prepared in anticipation
of litigation. “[C]ourts in this district have adopted a rebuttable presumption that documents
prepared before the final decision of an insured's claim do not constitute work product, but that
documents produced after a claims denial do.” A/G Centennial Ins. v. O'Neill, 09-6055 1-CI1V-
ZLOCH, 2010 WL 4116555 *11 (S.D. Fla. Oct. 18, 2010); Royal Bahamian Ass'n, Inc. v. OBE
Ins. Corp., 268 F.R.D. 695, 2010 WL 3452368, *1 (S.D. Fla. Sept. 3, 2010). “Documents
constituting any part of a factual inquiry into or evaluation of a claim, undertaken in order toarrive at a claim decision, are produced in the ordinary course of an insurer's business and are not
work product.” Essex Builders Group, Inc. v. Amerisure Ins. Co., 6:04-CV-1838-ORL-22, 2006
WL 1733857, at *2 (M.D. Fla. Oct. 20, 2006) (citing Harper v. Auto-Owners Ins. Co., 138
F.R.D. 655, 662 (S.D. Ind. 1991)).
With these principles in mind, recall that this suit was filed on December 4, 2019. This is
approximately one year after the dates of preparation for the documents claimed as protected by
the Defendant. Clearly, these documents were all created in the ordinary course of business and
in order to determine coverage; not created for litigation purposes.
D. The Defendant has the Burden to Prove Applicability of Protection
The Defendant has the burden of demonstrating the applicability of the work product
immunity. See Hartford Accident & Indemnity Co. v. McGann, 402 So. 2d 1361 (Fla. 4th
DCA 1981). If a party wishes to show that information or documents are protected by a
privilege, the party must list the specific documents to which it claims the privilege attaches.
See Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So. 2d 192 (Fla. 4th DCA 1991). The
insurer must demonstrate the connection to possible litigation concretely enough to assure a
court that it is not simply trying to immunize from discovery its routine claims processing
materials. Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp., 268 F.R.D. 695, 2010 WL
3452368, *1 (S.D. Fla. Sept. 3, 2010) (quoting Harper v. Auto-Owners Ins. Co., 138 F.R.D.
655, 663 (S.D. Ind. 1991)). A party cannot “make a blanket statement that these items were
prepared in anticipation of litigation and are protected from disclosure without presenting
evidence to support its claims.” See Wal-Mart Stores, Inc. v. Weeks, 696 So, 2d 855 (Fla. 2d
DCA 1997).Here, the Defendant has ultimately failed to demonstrate the applicability of the work
product doctrine. The Defendant has not disclosed any connection between the documents
and possible litigation concretely enough to assure this Honorable Court that it is not simply
trying to immunize from discovery its routine claims processing materials. The documents
sought by the Plaintiff were, by Defendant’s own admission in their Privilege Log, prepared
during the Defendant’s claim investigation, approximately one (1) year prior to the filing of
this suit. It is clear that the documents were not prepared in anticipation of litigation and
therefore, not afforded privilege protection.
E. Mr. Smith is Not Seeking Documents or Information Protected
By the Work Product Doctrine
Again, the discovery sought by the Plaintiff is not entitled to work product protection.
The Plaintiff seeks information the Defendant arrived at during its ordinary course of evaluating
his claims. Knowledge of (1) the content of the underwriting file(s) pertaining to the policies and
claim at issue in this matter; (2) reports and/or estimates prepared by the Defendant or any
representative, agent, or third party on behalf thereof, regarding the cause and/or scope of
damage to the Plaintiffs property prior to the filing of this action; (3) any photographs of the
damages and/or cause of the damages taken during an inspection by the Defendant or any
representative and/or agent thereof regarding the claim at issue prior to the filing of this suit; (4)
documentation of any pre-existing damages to the property at issue that the Defendant is relying
on to plead the affirmative defense of preexisting damages; (5) the application for insurance
submitted by the Plaintiff prior to the issuance of coverage; and (6) documentation of any other
claims made by the Plaintiff were created during the Defendant’s ordinary course of business.
a. The content of the underwriting file(s), including but not limited to estimates.
reports, notes, invoices, and pictures of the property, pertaining to the policies
and claim at issue in this matterThe underwriting file and any documents contained therein are relevant to the coverage
issues in this lawsuit. The documents contained in an underwriting file pertain to the type of
coverage the insured intended to purchase, materials concerning the interpretation of policy
provisions, the carrier's assessment of risk, the procurement of insurance coverage for the
insured, and premium calculations for that coverage. These materials are relevant because the
parties are disputing the extent of benefits available under the policies, which includes issues of
policy interpretation. The Defendant does not contest coverage for the Plaintiff's claim - only the
amount of coverage available. The Defendant tendered what it believes to be the policy limits for
the Plaintiff's claim, thereby confessing to coverage. But the Plaintiff contends that the language
of the policies provides for additional coverage owed. The underwriting file can therefore shed
light on the interpretation of the relevant policy provisions, and the Defendant must therefore
produce the file, as well as a representative to testify about these issues.
Courts have recognized that the underwriting file is relevant in a coverage lawsuit where,
as here, there is an issue regarding policy interpretation. Milinazzo v. State Farm Ins. Co., 247
F.R.D. 691 (S.D. Fla. 2007). It is clear that policy interpretation is at issue during a breach of
contract claim. The areas of inquiry endeavor to gain that type of information. Certainly,
knowledge regarding the Defendant’s policies and practices while initial evaluation of the claim
regarding the Plaintiff is relevant. Knowledge on the content of the underwriting file(s)
pertaining to the policies and claim at issue in this matter is relevant to the breach of contract suit
because they provide interpretative materials regarding the policies, the construction, and
application of the policies' provisions.
CONCLUSIONThe Defendant has failed to provide specific information as to why knowledge of (1) the
content of the underwriting file(s) pertaining to the policies and claim at issue in this matter; (2)
reports and/or estimates prepared by the Defendant or any representative, agent, or third party on
behalf thereof, regarding the cause and/or scope of damage to the Plaintiffs property prior to the
filing of this action; (3) any photographs of the damages and/or cause of the damages taken
during an inspection by the Defendant or any representative and/or agent thereof regarding the
claim at issue prior to the filing of this suit; (4) documentation of any pre-existing damages to the
property at issue that the Defendant is relying on to plead the affirmative defense of preexisting
damages; (5) the application for insurance submitted by the Plaintiff prior to the issuance of
coverage; and (6) documentation of any other claims made by the Plaintiff is irrelevant and
protected here.
The information sought is not protected by the work product immunity because an insurer
cannot anticipate litigation with its insured at the time it issues a policy, as well as at the time of
initial investigation of a claim. Accordingly, the work product immunity does not protect the
underwriting file, as the documents contained therein are created by the carrier (not an attorney)
in the regular course of its business and not in anticipation of litigation. The Plaintiff must
therefore be permitted to review the documents requested and additionally ask a representative of
the Defendant about this issue.
WHEREFORE, the Plaintiff, JAMES SMITH, respectfully requests that this Honorable
Court enter an Order:
1. Denying Defendant’s Motions for Protective Orders for Depositions of
Defendant’s Corporate Representative, Defendant’s Desk Adjuster, and
Defendant’s Field Adjuster;2. Compelling the Defendant to produce the following:
a.
the content of the underwriting file(s) pertaining to the policies and claim
at issue in this matter;
reports and/or estimates prepared by the Defendant or any representative,
agent, or third party on behalf thereof, regarding the cause and/or scope of
damage to the Plaintiffs property prior to the filing of this action;
any photographs of the damages and/or cause of the damages taken during
an inspection by the Defendant or any representative and/or agent thereof
regarding the claim at issue prior to the filing of this suit;
documentation of any pre-existing damages to the property at issue that
the Defendant is relying on to plead the affirmative defense of preexisting
damages;
the application for insurance submitted by the Plaintiff prior to the
issuance of coverage; and
documentation of any other claims made by the Plaintiff the file and
additionally ask a representative of the Defendant about this issue;
3. Granting any other relief that this Honorable Court deems just and proper under
the circumstances.CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
electronically filed with the Clerk of Court via the State of Florida’s E-Portal system and has been
served by electronic filing to counsel for the Defendant.
KANDELL, KANDELL, & PETRIE
Attorneys for Plaintiffs
OTT KANDELL, ESQ.
Fla. Bar No.: 079014Filing # 103700414 E-Filed 02/21/2020 12:51:54 PM
IN THE CIRCUIT COURT OF THE 14TH
JUDICIAL CIRCUIT IN AND FOR BAY
COUNTY, FLORIDA
CASE NO.: 19004406CA
JAMES R. SMITH,
Plaintiff,
v.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
DEFENDANT’S PRIVILEGE LOG
Defendant, SECURITY FIRST INSURANCE COMPANY, by and through its
undersigned counsel, and hereby provides its privilege log Pursuant to Fla. R. Civ. P.
1.280 and 1.350, with respect to its Responses to Plaintiff's First Request for Production.
Subject/ Date Author Recipient | Custody Privilege Pgs
Description
Field Adjuster 10/29/18 | Chris Defendant | Defendant | Claim File/ 5
Report Woods Work Product
Field Adjuster 11/18/18 | Chris Defendant | Defendant | Claim File/ 25
Estimate Woods Work Product
Field Adjuster 11/20/18 | Premier Defendant | Defendant | Claim File/ 1
Invoice Work Product
Third Party 12/17/18 | Global Defendant | Defendant | Claim File/ 7
Estimate Enterprise Work Product
Claim Journal Multiple | Unknown Defendant | Defendant | Claim File/ 3
Work Product
Unredacted 10/29/18 | Chris Defendant | Defendant | Claim File/ 163
Photographs Woods Work Product
EXHIBIT “A”CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 21st day of February, 2020, a true and correct
copy of the foregoing was filed with the Clerk of BAY County by using the Florida Courts
e-Filing Portal, which will send an automatic e-mail message to the following parties
registered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie,
justin@kandelllaw.com;justin@kkpfirm.com;jenni@kkpfirm.com, 2665 S. Bayshore
Drive, Suite 601, Coconut Grove, FL 33133, (305) 858-2220/(305) 858-2722 (F), Attorney
for Plaintiff, James R. Smith.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant TOWER HILL PRIME
INSURANCE COMPANY
4301 West Boy Scout Boulevard
Suite 400
Tampa, Florida 33607
Telephone (813) 509-2686
Facsimile (813) 286-2900
Primary e-mail: katherine. moran@csklegal.com
Secondary e-mail:
tiffany.coleman@csklegal.com
By: _s/ Katherine Moran
KATHERINE MORAN
Florida Bar No.: 1018653
9457.0165-00/16127386Filing # 114436836 E-Filed 10/05/2020 02:41:06 PM
IN THE CIRCUIT COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN
AND FOR BAY COUNTY, FLORIDA
CASE NO.: 19004406CA
JAMES R. SMITH,
Plaintiff,
Vv.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
DEFENDANT’S MOTION FOR PROTECTIVE ORDER REGARDING THE
DEPOSITION OF DEFENDANT'S CORPORATE REPRESENTATIVE
Defendant, SECURITY FIRST INSURANCE COMPANY, by and through its
undersigned counsel, by and through its undersigned counsel, hereby objects to Plaintiff's
Request for Deposition of the Defendant’s Corporate Representative, and moves for a
Protective Order pursuant to Florida Rules of Civil Procedure 1.280(c) and 1.310(b)(6),
and states as follows:
FACTUAL BACKGROUND
1. This case arises out of an action for breach of contract pertaining to a
homeowners insurance policy issued by Defendant.
2. The Plaintiff has produced specific Areas of Inquiry for the deposition of the
Corporate Representative. See Exhibit A.
3. The Areas of Inquiry state in pertinent part:
COMPOSITE EXHIBIT "A"
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2204 FAXCASE NO.: 19004406CA
1. The insurance policy.
All allegations in the Complaint.
3. Affirmative Defenses asserted in the Defendant’s Answer to Plaintiff's Com-
plaint.
4. Any issues related to coverage and disputes as to valuation of Plaintiff's
Complaint.
N
Questions as to the Claim File
4. It is anticipated Plaintiff intends to ask questions as to the claim file. For
example, this is evident in Areas of Inquiry numbered 2, 3, and 4. The corporate
representative cannot be compelled to testify as to the privileged matters. Scottsdale Ins.
Co. v. Camara, 813 So.2d 250; see also Matlack v. Day, 907 So.2d 577 (Fla. 5th DCA
2005) (granting insured's motion for protective order prohibiting deposition noticed by
claimant of insurer's underwriting manager and disclosure of materials in the insurer's file
pertaining to the insured; deposition and document requests were irrelevant and
protected by the work product privilege).
5. Additionally, any adjuster notes, emails, and financial and statistical data
are not discoverable in an insurer’s claim file or underwriting file. See State Farm Mutual
Automobile Ins. Co. v. O’Hearn, 975 So.2d 633 (Fla. 2nd DCA 2008).
6. Since Plaintiffs Areas of Inquiry are incredibly vague and broad, it is
uncertain specifically what they are specifically requesting, Defendant is seeking a
protective order as to any testimony or documents that are solely derived from the claim
file or underwriting file that are privileged.
2
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 19004406CA
Policy and Procedures
7. Again, Plaintiff's Areas of Inquiry are vague and overbroad and it is unclear
what information is specifically being requested. Defendant is seeking a protective order
on any questions in regards to policies and procedures. For example, this is evident in
Areas of Inquiry numbered 1, 3, and 4.
8. In this first party action the policy and procedures are not discoverable. See
General Star Indemnity Company v. Atlantic Hospitality of Florida, 93 So. 3d 501 (Fla. 3%
DCA 2012); State Farm Florida Ins. Co. v. Desai, 106 So. 3d 5 (Fla. 3 DCA 2013); State
Farm Mutual Automobile Ins. Co. v. O’Hearn, 975 So.2d 633 (Fla. 2nd DCA 2008).
9. Defendant files this motion for protective order and requests for the Court
to grant this motion and order that the Corporate Representative cannot provide testimony
regarding its policies and procedures.
WHEREFORE, Defendant files this motion for protective order and requests for
the Court to grant this motion and order 1) that the Corporate Representative cannot
provide testimony which is solely derived from the claim; 2) that the Corporate
Representative cannot provide testimony regarding its policies and procedures; 3) that
the Corporate Representative cannot provide testimony regarding its underwriting file; 4)
that the Corporate Representative cannot provide testimony regarding policy
interpretation; 5) that the Corporate Representative cannot produce documents which are
privileged.
3
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 19004406CA
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 5" day of October, 2020, a true and correct copy
of the foregoing was filed with the Clerk of Bay County by using the Florida Courts e-
Filing Portal, which will send an automatic e-mail message to the following parties regis-
tered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie, 2665
S. Bayshore Drive, Suite 601, Coconut Grove, FL 33133, justin@kendalllaw.com,
justing@kkpfirm.com, jenni@kkpfirm.com.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant
4301 West Boy Scout Boulevard
Suite 400
Tampa, Florida 33607
Telephone (813) 509-2686
Facsimile (813) 286-2900
Primary e-mail: paydon.broeder@csklegal.com
Secondary e-mail: katherine. moran@cskle-
gal.com
Alternative e-mail:
michael.schweitzer@csklegal.com
By: s/ Katherine L. Moran
KATHERINE L. MORAN
Florida Bar No.: 1018653
PAYDON R. BROEDER
Florida Bar No.: 106881
4
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX10.
EXHIBIT A
SCHEDULE A
The allegations set forth in the Complaint.
The Insurance Policy entered into between the Insurer and the Insured as referenced in
the Complaint.
All facts related to the Insurer’s involvement in the Insured’s claim as referenced in the
Complaint.
All facts related to communications between the Insured and agents of the Insurer as it
relates to the allegations set forth in the Complaint.
The adjustment and claim handling of the instant claim alleged in the Complaint. .
The dollar value of the Insured’s damages.
All facts and information supporting your defenses to the Plaintiff(s) claim for
insurance proceeds as alleged in the Complaint.
All facts and information supporting Your Answer and Affirrmative Defenses.
All facts and information supporting any defense or exclusion of coverage under the
Insurance Policy entered into between Plaintiff and Defendant as referenced in the
Complaint.
The identity, job title, job description and activitied of all persons (including any non-
employees) who participated in any way in Defendant’s investigation of the Loss as
described in the Complaint.
SCHEDULE B
Please bring a copy of all documents in your possession for the instant Claim as defined
in the Complaint that are not protected by a claimed privilege. If you are not producing
documents pursuant to this Schedule B request because you are claiming a privilege
please provide a privilege log. If a document is not produced and not referenced on a
privilege log we will assume it does not exist.Filing # 114436836 E-Filed 10/05/2020 02:41:06 PM
IN THE CIRCUIT COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN
AND FOR BAY COUNTY, FLORIDA
CASE NO.: 19004406CA
JAMES R. SMITH,
Plaintiff,
v.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
DEFENDANT’S MOTION FOR PROTECTIVE ORDER TO
PLAINTIFF’S REQUEST TO DEPOSE DEFENDANT'S DESK ADJUSTER
Defendant, SECURITY FIRST INSURANCE COMPANY (“Security First”), by and
through undersigned counsel, hereby files its Motion for Protective Order and Objections
concerning Plaintiff's Request to Take the Deposition of Defendant's Desk Adjuster and
as grounds states:
1. Plaintiff filed suit against Security First for alleged breach of contract as a
result of a dispute over insurance benefits related to an alleged water claim.
2. Plaintiff has requested the deposition of Defendant’s Desk Adjuster, Hida
Smith,
3. Defendant seeks an order of protecting preventing Plaintiff from
seeking testimony from the Desk Adjuster concerning the following:
a. the handling and processing of the claim;
b. interpretation of the subject policy;
c. the basis for the denial, reduction and/or non-payment of the
subject claim, and;CASE NO.: 19-002028-Cl
d. Information regarding the appraisal, estimate and/or other
computation used to determine the value of the loss.
4. As Plaintiff has not provided any Areas of Inquiry, the requested deposition
is extremely vague, ambiguous, and may seek protected and privileged information.
5. Hida Smith served only in the capacity of a Desk Adjuster in Defendant’s
investigation of the subject claim, has not been designated as Defendant’s corporate
representative, and therefore, Plaintiff's request for testimony concerning same is
improper.
6. Hida Smith is being offered by Defendant strictly as a fact witness based
upon personal knowledge and observations during the resulting from the inspection of
Plaintiff's property in relation to the subject claim.
7. As such, Defendant seeks to restrict Plaintiffs intended questioning of its
Desk Adjuster to personal knowledge of the facts underlying the claim.
MEMORANDUM OF LAW
L Defendant’s Desk Adjuster, Hida Smiths testimony concerning materials in
the claim file and the handling and processing of the claim are privileged and not
discoverable.
Any testimony by Hida smith concerning the contents of and information contained
in the materials within the claims file is premature and not discoverable, unless there is a
claim for bad faith. Defendant objects to testimony regarding claims handling and claim
file materials, pursuant to well settled Florida law. Am. Home Assur. Co. v. Vreeland, 973
So. 2d 668, 671 (Fla. 2d DCA 2008);Scottsdale Ins. Co. v. Camara de Comercio Latino-
Americana de Los Estados Unidos, Inc., 813 So. 2d 250, 251 (Fla. 3d DCA 2002). Plaintiff
cannot elicit information contained within the claims file which Defendant asserts is
protected by privilege and is non-discoverable. Hida Smith must not be required to testify
Page 2
COLE, SCOTT & KISSANE, P.A.
4301 W. Boy Scout Blvd, SUITE 400, Tampa, FL 336072019-CC-008733-O0
about such information, or produce any protected claim handling material as they are not
discoverable in the instant matter. Furthermore, Defendant has previously filed a privilege
log claiming claim file documents as privileged in response to Plaintiffs Request for
Production. Essentially, should Plaintiff request testimony or the production of such
documents at the deposition of Hida Smith, Plaintiff would be attempting to avoid and
circumvent the claims file and work product privileges by having a non-party witness testify
or produce privileged documentation.
Therefore, Defendant moves for a protective order as to any questions regarding
information that is derived from the claim file, as well as investigative reports, adjusters’
notes, underwriting files, company policies and manuals, training materials, certain
personnel files, sales brochures and marketing materials, computer manuals for operating
internal software and programs, details of rewards and bonus programs for employees,
employee incentive and compensation programs, third party programs and related
correspondences, casualty and estimating manuals, and minutes of meetings, policy
interpretation/application and the claims handling, claims adjusting/estimating and
decision making procedures related to the subject claim as well as all documents on
Defendant's Privilege Log.2019-CC-008733-O0
I. Defendant’s Desk Adjuster’s deposition testimony should be limited
to that of a fact witness.
Defendant has not designated Hida Smith as its corporate representative pursuant
to Florida Rule of Civil Procedure 1.310(b)(6). Hida Smith’s opinions in relation to whether
the loss is covered or how Defendant comes to its decisions concerning coverage are not
discoverable as they are irrelevant to a first party breach of contract dispute and constitute
privileged information contained in Defendant's claim file and work product. American
Reliance Ins. Co., 671 So. 2d 250.
As discussed above, this premise extends to any analysis performed by the Desk
Adjuster, and it would depart from the essential requirements of law to permit such
discovery of materials and deposition questioning. /d. at 251. Therefore, Defendant
objects to the aforementioned requests to the extent that they may seek improper
discovery of a fact witness who is not being proffered to testify as a corporate
representative on behalf of Defendant. And instead, to those of a fact witness, which would
constitute his observations of the subject property (damages observed, overall condition,
etc.) and her communications and correspondence with the Plaintiff and/or his
representatives and/or third parties involved in the subject claim on the Plaintiffs behalf.
Ml. Defendant’s Desk Adjuster cannot interpret the insurance policy.
In a first party breach of contract action, any deposition inquiry topics concerning
the interpretation of the subject insurance policy is entirely improper as no deposition
can be had on the meaning of an insurance contract as it is a question of law and, thus,
not subject to testimony of a fact witness. Granada Ins. Co. v. Ricks, 12 So. 3d 276 (Fla.
3d DCA 2009); Hartford Ins. Co. of the Midwest v. BellSouth, 824 So. 2d 234, 237 (Fla.2019-CC-008733-O0
4" DCA 2002). For example, in Granada Ins. Co., the Third District Court of Appeal
unambiguously stated because the meaning of an insurance contract is a question of
law it is not subject to opinion testimony. Granada Ins. Co., 12 So. 3d 276. Accordingly,
Defendant seeks a protective order as to discussing subjects and topics related to
interpretation of the insurance policy.
IV. The Desk Adjuster has not been designated by Security First as a
testifying expert or the corporate representative, and therefore, their deposition
testimony and questioning should be limited to that of a fact witness.
Security First has not designated Hida Smith as an expert witness pursuant to Fla.
R. Civ. P. 1.280(b)(4) or a corporate representative pursuant to Fla. R. Civ. P. 1.310.
Security First objects to the extent Plaintiff seeks improper expert discovery of a fact
witness or improper corporate representative discovery of a fact witness. Security First
seeks a protective order (1) limiting the documents to be produced at the deposition and
protection of the claim file materials and (2) strictly limiting deposition inquiries directed
toward the field adjuster and desk adjuster, to those of fact witnesses, which would
constitute Hida Smith’s observations of the subject property (damages observed, overall
condition, etc.) and Hida Smith’s communications and correspondences with Plaintiff
and/or his representatives and other individuals and third-parties involved in the subject
claim on Plaintiff's behalf.
Vv. Defendant’s Desk Adjuster testimony should be limited to the subject
claim.
Florida law is clear that information, documentation, and materials concerning the
investigation of a claim performed on behalf of an insurer and/or performed by an adjuster
retained by an insurer to evaluate a claim is not discoverable. American Reliance Ins.Co.2019-CC-008733-0
v. Rosemont Condominium Homeowners Association, Inc., 671 So. 2d 250 (Fla. 3d DCA
1996). Specifically, questions and the production of documents concerning the field
adjuster’s notes concerning their analysis are privileged work product and irrelevant to a
first party coverage dispute, and, therefore, not discoverable. /d. at 251.
Furthermore, to permit the discovery of such information and materials would be a
departure from the essential requirements of law. /d. Because this is a first party action,
any questions regarding general claims handling procedures would be improper and
premature. Am. Home Assur. Co., 973 So. 2d at 671; Scottsdale Ins. Co., 813 So. 2d at
251. Thus, the deposition questions must be limited to the subject claim. Defendant moves
for a protective order as to any questions regarding information that is derived from the
claim file as well as investigative reports, adjusters’ notes, billing and invoice(s), work logs,
correspondence and communications with Defendant and Defendant’s employees,
representatives, supervisors, administrators and/or support staff, and the adjusters’
analysis concerning the subject claim.
WHEREFORE, Defendant, SECURITY FIRST INSURANCE COMPANY, hereby
files this Motion for Protective Order and requests that this Honorable Court to grant this
Motion for Protective Order as to the Deposition of Desk Adjuster, Hida Smith, and enter
an Order which (1) prohibits Plaintiffs from discovering otherwise privileged documents
and information related to Defendant’s investigation of the reported claim, including
disclosure of any and all previously objected to privileged documents; (2) prohibits Plaintiff
from obtaining testimony regarding said documents and information; (3) that the Desk
Adjuster will be deposed strictly as a fact witnesses and not be asked any questions
concerning policy interpretation or guidelines; (4) that the Desk Adjuster’s testimony be2019-CC-008733-O0
limited to the subject claim; and (5) for any and all other relief this Court deems just and
proper.
[CERTIFICATE OF SERVICE ON FOLLOWING PAGE]CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 5" day of October, 2020, a true and correct copy
of the foregoing was filed with the Clerk of Bay County by using the Florida Courts e-Filing
Portal, which will send an automatic e-mail message to the following parties registered
with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie, 2665 S.
Bayshore Drive, Suite 601, Coconut Grove, FL 33133, justin@kendalllaw.com,
justing@kkpfirm.com, jenni@kkpfirm.com.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant
4301 West Boy Scout Boulevard
Suite 400
Tampa, Florida 33607
Telephone (813) 509-2686
Facsimile (813) 286-2900
Primary e-mail: paydon.broeder@csklegal.com
Secondary e-mail:
katherine.moran@csklegal.com
Alternative e-mail:
michael.schweitzer@csklegal.com
By: s/ Katherine L. Moran
KATHERINE L. MORAN
Florida Bar No.: 1018653
PAYDON R. BROEDER
Florida Bar No.: 106881Filing # 114436836 E-Filed 10/05/2020 02:41:06 PM
IN THE CIRCUIT COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN
AND FOR BAY COUNTY, FLORIDA
CASE NO.: 19004406CA
JAMES R. SMITH,
Plaintiff,
Vv.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
DEFENDANT’S MOTION FOR PROTECTIVE ORDER AS TO THE DEPOSITION OF
THE FIELD ADJUSTER
COMES NOW Defendant, SECURITY FIRST INSURANCE COMPANY, by and
through its undersigned counsel, and pursuant to the Florida Rule of Civil Procedure
hereby files this Motion for Protective Order As To The Deposition of the Field Adjuster,
moves for a Protective Order pursuant to Florida Rules of Civil Procedure 1.280(c) and
states as follows:
FACTUAL BACKGROUND
1. This case arises out of an action for breach of contract pertaining to a
homeowners’ insurance policy issued by Defendant.
2. Plaintiff requested the deposition of field adjuster, Chris Woods, to testify as to
his involvement in the subject claim. However, testimony may be solicited that
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCASE NO.: 19-CA-007726
necessarily related to privileged claim file information and undiscoverable
claims handling materials.
. Pursuant to Florida Law, Plaintiff's request to take Mr. Woods’ deposition and
accompanying requests for the production of various documents and materials
by Mr. Woods are improper, as they seek the production of documents and
materials which comprise Defendant’s claims file and, therefore, are not dis-
coverable in any capacity in a breach of contract action prior to a determination
of coverage.
. Defendant requests the court order the parties to limit the documents and the
like to be produced at the deposition and protection of the claim file materials
as they are privileged and not discoverable in the current action.
. Further, Defendant seeks to restrict Plaintiff's intended questioning of the field
adjuster at the deposition so as to prevent tactics and strategy of the funneling
of claim file information to protect materials contained within the claim file as
they are privileged and not discoverable.
. Moreover, Chris Woods, who served in the capacity of a field adjuster in
Defendant’s investigation of the subject claim, has not been designated as a
testifying expert on behalf of Defendant, and therefore, Plaintiff is not entitled
to Mr. Woods’ opinions. He is being offered by Defendant strictly as a fact
witness based upon his observations during his inspection of the Plaintiff's
property in relation to the subject claim and his communications with Plaintiff
during his investigation.
2
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2000 FAXCASE NO.: 19-CA-007726
MEMORANDUM OF LAW
|. Testimony of the Field Adjuster concerning his investigation of the
claim is privileged and not discoverable.
Florida Law is clear that information, documentation and materials concerning
the investigation of a claim performed on behalf of an insurer and/or performed
by an adjuster retained by an insurer to evaluate a claim is not discoverable.
American Reliance Ins. Co. v. Rosemont Condominium Homeowners Assoc.,
Inc., 671 So.2d 250 (Fla. 3d DCA 1996). Specifically, questions and the
production of docu
Preview
Filing # 117827596 E-Filed 12/08/2020 11:47:26 AM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CASE NO.: 19004406CA JAMES R. SMITH and TESSA SMITH, Plaintiffs, Vv. SECURITY FIRST INSURANCE COMPANY, Defendant. / DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO OVERRULE DEFENDANT’S OBJECTIONS AND TO COMPEL DISCOVERY BY WAY OF DEPOSITIONS AND REQUEST FOR PRODUCTION COMES NOW Defendant, SECURITY FIRST INSURANCE COMPANY, by and through their undersigned counsel, and pursuant to the Florida Rule of Civil Procedure 1.280 and 1.380 hereby file its Response to Plaintiff's Motion to Overrule Defendant's Objections and to Compel Discovery by Way of Depositions and Request for Production, and for grounds therefore state: 1. On February 21, 2020, Defendant served its responses to Plaintiff's initial Request for Production. 2. On December 1, 2020, Plaintiffs filed their Motion to Overrule Defendant's Objections and to Compel Discovery by Way of Depositions and Request for Production. 3. Plaintiffs raise objections to the following of Defendant's objections: COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA A few of the requests sought any and all estimates prepared by the Defendant and/or any third party on behalf of the Defendant; any photographs taken by the Defendant and/or third party; and a copy of the underwriting file for the insurance policy issued to Plaintiff. See Plaintiff's Motion to Overrule attached hereto as Exhibit A. 4. Defendant responded to the above-referenced requests as follows: 5. Request #4: Any and all estimates prepared by Defendant, or any representative, employee and/or agent thereof, for repair or replacement of any damage on the subject property prior to the filing of this action. RESPONSE: Objection. This request is overbroad and seeks irrelevant and improper “bad faith” discovery of claim file and claim handling materials, and work-product privileged and protected documentation contained in the claim file. See Defendant’s Privilege Log filed contemporaneously herein. Notwithstanding and without waiving said objection, please see attached any non- privileged responsive documents. 6. Request #6: Any and all photographs of the damages and/or the cause of damages taken during any inspection by Defendant, or any representative, employee and/or agent thereof. RESPONSE: Objection. This request is overbroad and seeks irrelevant and improper “bad faith” discovery of claim file and claim handling materials, and work-product -2- COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA privileged and protected documentation contained in the claim file. See Defendant’s Privilege Log filed contemporaneously herein. Notwithstanding and without waiving said objection, please see attached any non- privileged responsive documents. 7. Request #13: A copy of the entire underwriting file for the insurance policy issued by Defendant to Plaintiff for the property located at 7401 W. Highway 98, Port St. Joe, FL 32456. RESPONSE: Objection. This request is overbroad and seeks irrelevant and improper “bad faith” discovery of claim file and claim handling materials, and work-product privileged and protected documentation contained in the claim file. See Defendant’s Privilege Log filed contemporaneously herein. Defendant objected to the request regarding a copy of the underwriting file as irrelevant and improper “bad faith” discovery. 8. Plaintiff has also objected to Defendant’s Privilege Log in its entirety. MEMORANDUM OF LAW A. The Issues of Liability, Coverage, and/or Damages Have Not Been Determined Florida courts have held that until the issues of coverage, liability, and/or damages have been finally determined, discovery requests related to the “claims file or insurer's business policies or practices regarding handling of these claims” are facially improper and a party is not entitled to them. State Farm Mut. Auto. Ins. Co. v. -3- COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); see also State Farm v. O'Hearn, 975 So. 2d 633, 637 (Fla. 2d DCA 2008) As this case is still in litigation, the issues of coverage, liability, and/or damages have not been finally determined. Therefore, Plaintiff is not entitled to discovery related to Defendant's claim file and/or business policies or practices. This includes Plaintiffs’ requests regarding any and all estimates prepared by Defendant or a third party, any photographs taken of the subject property by Defendant or by a third-party, and Defendant's complete underwriting file. B. Plaintiff is Not Asserting a Bad Faith Claim Plaintiff's Complaint sets out in Count | that they are seeking relief under a Breach of Contract claim. See Plaintiff's Complaint attached hereto as Exhibit B. Plaintiff is not asserting or alleging bad faith in the instant action. As Plaintiff seeks relief under breach of contract and is not pursuing a bad faith claim, the disclosure of the contents of an insurer's claim file departs from the essential requirements of the law. Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009) (holding that 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 and...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.) Plaintiffs also object to Defendant's Privilege Log in its entirety and state that because the documents were created prior to the filing date of the instant lawsuit, they are not afforded the work-product privilege. However, Defendant’s objections are not -4- COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA solely based on the work-product privilege. Defendant also lists the documents as “claim file’ materials in Defendant's Privilege Log. As stated and supported previously, an Insurer is entitled to protection of its claim handling and claim file documents prior to a final determination of coverage, liability, and/or damages. Defendant also objected on the grounds that Plaintiffs’ requests are overbroad and seek irrelevant and improper “bad faith” discovery of claim file and claim handling materials. See Defendant’s Responses to Plaintiff's Request for Production attached hereto as Exhibit C. In Nationwide Ins. Co. of Florida v. Denmo, 57 So.3d 982 (Fla. 2d DCA 2011), the court held that the trial court had improperly granted a Motion to Compel by focusing on the question of what is and what is not work product. The determinative issue turns on what type of action Plaintiff brought. Here, as in Denmo, Plaintiff is not pursuing a bad faith claim but rather seeks relief for breach of contract. The court held that an insurer cannot be compelled in disclosing its claim file contents when the issue of coverage, liability, and/or damages is in dispute and has not been resolved. Plaintiffs’ overbroad requests are improper under Florida law as they directly relate to Defendant’s claims file, claims handling, policies, protocol, and/or practices when no determination of coverage, liability, and/or damages has been made nor have Plaintiffs sought relief under a bad faith action. Cc. Conclusion As Plaintiffs are not seeking relief under a bad faith claim, their discovery requests regarding Defendant's claims file and claims handling materials, policies, practices, or protocols are irrelevant and improper. There are also still issues currently in litigation regarding coverage, liability, and/or damages that have not been finally determined. -5- COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA Therefore, as stated and supported above, Plaintiffs are not entitled to discovery related to claims file and claims handling materials, policies, practices, or protocols WHEREFORE, the Defendant, SECURITY FIRST INSURANCE COMPANY, requests this Honorable Court to deny Plaintiffs’ Motion to Overrule Defendant’s Objections and to Compel Discovery by Way of Depositions or Discovery and sustain Defendant’s objections. [CERTIFICATE OF SERVICE ON FOLLOWING PAGE] -6- COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCase No. 19004406CA CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 8th day of December, 2020, a true and correct copy of the foregoing was filed with the Clerk of Bay County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie, 2665 S. Bayshore Drive, Suite 601, Coconut Grove, FL 33133, justin@kendalllaw.com, justing@kkpfirm.com, jenni@kkpfirm.com. By: COLE, SCOTT & KISSANE, P.A. Counsel for Defendant 4301 West Boy Scout Boulevard Suite 400 Tampa, Florida 33607 Telephone (813) 509-2686 Facsimile (813) 286-2900 Primary e-mail: paydon.broeder@csklegal.com Secondary e-mail: katherine.moran@csklegal.com Alternative e-mail: michael.schweitzer@csklegal.com s/ Katherine L. Moran KATHERINE L. MORAN Florida Bar No.: 1018653 PAYDON R. BROEDER Florida Bar No.: 106881 -7- COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXFiling # 117450709 E-Filed 12/01/2020 02:25:15 PM EXHIBIT A IN THE CIRCUIT COURT OF THE 14” JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NUMBER: 19004406CA JAMES R. SMITH, Plaintiff, vs. SECURITY FIRST INSURANCE COMPANY, Defendant. / PLAINTIFF’S MOTION TO OVERRULE DEFENDANT’S OBJECTIONS AND TO COMPEL DISCOVERY BY WAY OF DEPOSITIONS AND REQUEST FOR PRODUCTION COMES NOW, the Plaintiff, JAMES R. SMITH, (the “Plaintiff”), by and through the undersigned counsel and pursuant to the applicable rules of Civil Procedure move this Honorable Court to overrule Defendant’s objections and compel discovery of the documents listed within Defendant, SECURITY FIRST INSURANCE COMPANY’S, (the “Defendant”), Privilege Log. In support thereof, the Plaintiffs allege: 1. On or about January 8, 2020, the Plaintiff served the Defendant with its First Request for Production relating to a dispute as to the proper actual cash value of Plaintiff's homeowner’s insurance claim. 2. A few of the requests sought any and all estimates prepared by the Defendant and/or any third party on behalf of the Defendant; any photographs taken by the Defendant and/or third party on behalf of the Defendant; and a copy of the underwriting file for the insurance policy issued to the Plaintiff.3. On February 21, 2020, the Defendant filed its responses to Plaintiff's Request for Production. 4. The Defendant raised numerous objections to Plaintiffs requests, claiming the requests were “overbroad, irrelevant, and improper ‘bad faith’ discovery of claim file and claim handling...” The Defendant additionally filed its Privilege Log listing the following as privileged under “claim file/work product:” a. Field Adjuster Report, dated 10/29/18; b. Field Adjuster Estimate, dated 11/18/18; c. Field Adjuster Invoice, dated 11/20/18; d. Third Party Estimate, dated 12/17/18; e. Claim Journal, multiple dates; f. Unredacted Photographs; dated 10/29/18. A copy of the Defendant’s Privilege Log is attached hereto as Exhibit “A.” 5. It should be noted that the filing of this suit did not occur until December 4, 2019. 6. Additionally, on October 5, 2020, the Defendant filed Protective Orders for the depositions of 1) the Defendant’s Corporate Representative; 2) the Defendant’s Desk Adjuster on this matter; and 3) the Defendant’s Field Adjuster on this matter. See Defendant’s Motions for Protective Order, attached hereto as Composite Exhibit “A” 7. The Plaintiff is requesting documents not in hopes of conducting ‘bad faith’ discovery of claim handling, but to obtain information created in the ordinary course and scope of business of the Defendant. Therefore, not done in preparation of litigation and consequently not privileged.MEMORANDUM OF LAW IN SUPPORT A. General Principles of Discovery The scope of discovery is set forth in Fla. R. Civ. P. 1.280(b). Courts employ a liberal discovery standard in keeping with the spirit and purpose of the discovery rules. An essential tenet of Florida's discovery rules is that broad discovery is permitted “...in order to advance the State's important interest in the fair resolution of disputes....” Alterra Healthcare Corporation v. Estate of Shelley, 837 So. 2d 936, 945 (Fla. 2002). A party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter's pending actions. See Fla. R. Civ. P. 1.280(b). Requests are relevant if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. /d. “An objection that a discovery request is irrelevant and not reasonably calculated to lead to admissible evidence must include a specific explanation describing why the request lacks relevance and why the information sought will not reasonably lead to admissible evidence.” Consumer Electronics Ass'n v. Compras and Buys Magazine, Inc., 2008 WL 4327253 (S.D. Fla. Sept. 18, 2008). Additionally, “[t]he burden of showing that the requested discovery is not relevant to the issues in the case is on the party resisting discovery.” /d. (citing Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D. N.C. 1978)); see also Carson v. City of Fort Lauderdale, 173 So .2d 743, 744 (2d DCA 1965). Security First has failed to include specific explanations describing why Mr. Smith’s areas of inquiry lack relevance or why the categories will not lead to admissible evidence and therefore its objections are improper and unfounded. B. Documents Created during the Ordinary Course of Evaluating a Claim are not Work-Product Work product protection only applies to documents and things prepared in anticipation of litigation. See Grinnell Corp. v. The Palms 2100 Ocean Blvd., Ltd., 924 So. 2d 887, 891. In theinsurance context, documents produced in the ordinary course of an insurer's investigation of a claim are not entitled to work product protection. See Allstate Indemnity Company v. Ruiz, 899 So. 2d 1121, 1123 (Fla. 2005) (affirming the district court's holding that various statements, computer diaries, adjuster entries, and a memorandum exchanged between an adjuster and her supervisor were not protected work product because they were prepared during the normal course of the claim investigation and not in anticipation of litigation); Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So. 2d 192 (Fla. 4th DCA 1991) (holding that insurer failed to establish that work product privilege shielded documents sought by insureds because insurer failed to show that materials were prepared in anticipation of litigation rather than in the normal course of evaluating the insureds’ claim); Cotton State Mut. Ins. Co. v. Turtle Reef Assoc., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984) (finding that an insurance company's claims investigation in its early stages is conducted in the ordinary course of business and does not constitute work product); Marshalls of MA, Inc. y. Minsal, 932 So. 2d 444 (Fla. 3" DCA 2006) (holding that reports prepared solely for a purpose other than litigation are not protected by work-product). C. How Florida Courts Determine Which Documents are Afforded Protection Federal courts in this district (applying Florida law) have developed a guideline for purposes of determining when documents will be deemed to have been prepared in anticipation of litigation. “[C]ourts in this district have adopted a rebuttable presumption that documents prepared before the final decision of an insured's claim do not constitute work product, but that documents produced after a claims denial do.” A/G Centennial Ins. v. O'Neill, 09-6055 1-CI1V- ZLOCH, 2010 WL 4116555 *11 (S.D. Fla. Oct. 18, 2010); Royal Bahamian Ass'n, Inc. v. OBE Ins. Corp., 268 F.R.D. 695, 2010 WL 3452368, *1 (S.D. Fla. Sept. 3, 2010). “Documents constituting any part of a factual inquiry into or evaluation of a claim, undertaken in order toarrive at a claim decision, are produced in the ordinary course of an insurer's business and are not work product.” Essex Builders Group, Inc. v. Amerisure Ins. Co., 6:04-CV-1838-ORL-22, 2006 WL 1733857, at *2 (M.D. Fla. Oct. 20, 2006) (citing Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 662 (S.D. Ind. 1991)). With these principles in mind, recall that this suit was filed on December 4, 2019. This is approximately one year after the dates of preparation for the documents claimed as protected by the Defendant. Clearly, these documents were all created in the ordinary course of business and in order to determine coverage; not created for litigation purposes. D. The Defendant has the Burden to Prove Applicability of Protection The Defendant has the burden of demonstrating the applicability of the work product immunity. See Hartford Accident & Indemnity Co. v. McGann, 402 So. 2d 1361 (Fla. 4th DCA 1981). If a party wishes to show that information or documents are protected by a privilege, the party must list the specific documents to which it claims the privilege attaches. See Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So. 2d 192 (Fla. 4th DCA 1991). The insurer must demonstrate the connection to possible litigation concretely enough to assure a court that it is not simply trying to immunize from discovery its routine claims processing materials. Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp., 268 F.R.D. 695, 2010 WL 3452368, *1 (S.D. Fla. Sept. 3, 2010) (quoting Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 663 (S.D. Ind. 1991)). A party cannot “make a blanket statement that these items were prepared in anticipation of litigation and are protected from disclosure without presenting evidence to support its claims.” See Wal-Mart Stores, Inc. v. Weeks, 696 So, 2d 855 (Fla. 2d DCA 1997).Here, the Defendant has ultimately failed to demonstrate the applicability of the work product doctrine. The Defendant has not disclosed any connection between the documents and possible litigation concretely enough to assure this Honorable Court that it is not simply trying to immunize from discovery its routine claims processing materials. The documents sought by the Plaintiff were, by Defendant’s own admission in their Privilege Log, prepared during the Defendant’s claim investigation, approximately one (1) year prior to the filing of this suit. It is clear that the documents were not prepared in anticipation of litigation and therefore, not afforded privilege protection. E. Mr. Smith is Not Seeking Documents or Information Protected By the Work Product Doctrine Again, the discovery sought by the Plaintiff is not entitled to work product protection. The Plaintiff seeks information the Defendant arrived at during its ordinary course of evaluating his claims. Knowledge of (1) the content of the underwriting file(s) pertaining to the policies and claim at issue in this matter; (2) reports and/or estimates prepared by the Defendant or any representative, agent, or third party on behalf thereof, regarding the cause and/or scope of damage to the Plaintiffs property prior to the filing of this action; (3) any photographs of the damages and/or cause of the damages taken during an inspection by the Defendant or any representative and/or agent thereof regarding the claim at issue prior to the filing of this suit; (4) documentation of any pre-existing damages to the property at issue that the Defendant is relying on to plead the affirmative defense of preexisting damages; (5) the application for insurance submitted by the Plaintiff prior to the issuance of coverage; and (6) documentation of any other claims made by the Plaintiff were created during the Defendant’s ordinary course of business. a. The content of the underwriting file(s), including but not limited to estimates. reports, notes, invoices, and pictures of the property, pertaining to the policies and claim at issue in this matterThe underwriting file and any documents contained therein are relevant to the coverage issues in this lawsuit. The documents contained in an underwriting file pertain to the type of coverage the insured intended to purchase, materials concerning the interpretation of policy provisions, the carrier's assessment of risk, the procurement of insurance coverage for the insured, and premium calculations for that coverage. These materials are relevant because the parties are disputing the extent of benefits available under the policies, which includes issues of policy interpretation. The Defendant does not contest coverage for the Plaintiff's claim - only the amount of coverage available. The Defendant tendered what it believes to be the policy limits for the Plaintiff's claim, thereby confessing to coverage. But the Plaintiff contends that the language of the policies provides for additional coverage owed. The underwriting file can therefore shed light on the interpretation of the relevant policy provisions, and the Defendant must therefore produce the file, as well as a representative to testify about these issues. Courts have recognized that the underwriting file is relevant in a coverage lawsuit where, as here, there is an issue regarding policy interpretation. Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691 (S.D. Fla. 2007). It is clear that policy interpretation is at issue during a breach of contract claim. The areas of inquiry endeavor to gain that type of information. Certainly, knowledge regarding the Defendant’s policies and practices while initial evaluation of the claim regarding the Plaintiff is relevant. Knowledge on the content of the underwriting file(s) pertaining to the policies and claim at issue in this matter is relevant to the breach of contract suit because they provide interpretative materials regarding the policies, the construction, and application of the policies' provisions. CONCLUSIONThe Defendant has failed to provide specific information as to why knowledge of (1) the content of the underwriting file(s) pertaining to the policies and claim at issue in this matter; (2) reports and/or estimates prepared by the Defendant or any representative, agent, or third party on behalf thereof, regarding the cause and/or scope of damage to the Plaintiffs property prior to the filing of this action; (3) any photographs of the damages and/or cause of the damages taken during an inspection by the Defendant or any representative and/or agent thereof regarding the claim at issue prior to the filing of this suit; (4) documentation of any pre-existing damages to the property at issue that the Defendant is relying on to plead the affirmative defense of preexisting damages; (5) the application for insurance submitted by the Plaintiff prior to the issuance of coverage; and (6) documentation of any other claims made by the Plaintiff is irrelevant and protected here. The information sought is not protected by the work product immunity because an insurer cannot anticipate litigation with its insured at the time it issues a policy, as well as at the time of initial investigation of a claim. Accordingly, the work product immunity does not protect the underwriting file, as the documents contained therein are created by the carrier (not an attorney) in the regular course of its business and not in anticipation of litigation. The Plaintiff must therefore be permitted to review the documents requested and additionally ask a representative of the Defendant about this issue. WHEREFORE, the Plaintiff, JAMES SMITH, respectfully requests that this Honorable Court enter an Order: 1. Denying Defendant’s Motions for Protective Orders for Depositions of Defendant’s Corporate Representative, Defendant’s Desk Adjuster, and Defendant’s Field Adjuster;2. Compelling the Defendant to produce the following: a. the content of the underwriting file(s) pertaining to the policies and claim at issue in this matter; reports and/or estimates prepared by the Defendant or any representative, agent, or third party on behalf thereof, regarding the cause and/or scope of damage to the Plaintiffs property prior to the filing of this action; any photographs of the damages and/or cause of the damages taken during an inspection by the Defendant or any representative and/or agent thereof regarding the claim at issue prior to the filing of this suit; documentation of any pre-existing damages to the property at issue that the Defendant is relying on to plead the affirmative defense of preexisting damages; the application for insurance submitted by the Plaintiff prior to the issuance of coverage; and documentation of any other claims made by the Plaintiff the file and additionally ask a representative of the Defendant about this issue; 3. Granting any other relief that this Honorable Court deems just and proper under the circumstances.CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed with the Clerk of Court via the State of Florida’s E-Portal system and has been served by electronic filing to counsel for the Defendant. KANDELL, KANDELL, & PETRIE Attorneys for Plaintiffs OTT KANDELL, ESQ. Fla. Bar No.: 079014Filing # 103700414 E-Filed 02/21/2020 12:51:54 PM IN THE CIRCUIT COURT OF THE 14TH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CASE NO.: 19004406CA JAMES R. SMITH, Plaintiff, v. SECURITY FIRST INSURANCE COMPANY, Defendant. DEFENDANT’S PRIVILEGE LOG Defendant, SECURITY FIRST INSURANCE COMPANY, by and through its undersigned counsel, and hereby provides its privilege log Pursuant to Fla. R. Civ. P. 1.280 and 1.350, with respect to its Responses to Plaintiff's First Request for Production. Subject/ Date Author Recipient | Custody Privilege Pgs Description Field Adjuster 10/29/18 | Chris Defendant | Defendant | Claim File/ 5 Report Woods Work Product Field Adjuster 11/18/18 | Chris Defendant | Defendant | Claim File/ 25 Estimate Woods Work Product Field Adjuster 11/20/18 | Premier Defendant | Defendant | Claim File/ 1 Invoice Work Product Third Party 12/17/18 | Global Defendant | Defendant | Claim File/ 7 Estimate Enterprise Work Product Claim Journal Multiple | Unknown Defendant | Defendant | Claim File/ 3 Work Product Unredacted 10/29/18 | Chris Defendant | Defendant | Claim File/ 163 Photographs Woods Work Product EXHIBIT “A”CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 21st day of February, 2020, a true and correct copy of the foregoing was filed with the Clerk of BAY County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie, justin@kandelllaw.com;justin@kkpfirm.com;jenni@kkpfirm.com, 2665 S. Bayshore Drive, Suite 601, Coconut Grove, FL 33133, (305) 858-2220/(305) 858-2722 (F), Attorney for Plaintiff, James R. Smith. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant TOWER HILL PRIME INSURANCE COMPANY 4301 West Boy Scout Boulevard Suite 400 Tampa, Florida 33607 Telephone (813) 509-2686 Facsimile (813) 286-2900 Primary e-mail: katherine. moran@csklegal.com Secondary e-mail: tiffany.coleman@csklegal.com By: _s/ Katherine Moran KATHERINE MORAN Florida Bar No.: 1018653 9457.0165-00/16127386Filing # 114436836 E-Filed 10/05/2020 02:41:06 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CASE NO.: 19004406CA JAMES R. SMITH, Plaintiff, Vv. SECURITY FIRST INSURANCE COMPANY, Defendant. DEFENDANT’S MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITION OF DEFENDANT'S CORPORATE REPRESENTATIVE Defendant, SECURITY FIRST INSURANCE COMPANY, by and through its undersigned counsel, by and through its undersigned counsel, hereby objects to Plaintiff's Request for Deposition of the Defendant’s Corporate Representative, and moves for a Protective Order pursuant to Florida Rules of Civil Procedure 1.280(c) and 1.310(b)(6), and states as follows: FACTUAL BACKGROUND 1. This case arises out of an action for breach of contract pertaining to a homeowners insurance policy issued by Defendant. 2. The Plaintiff has produced specific Areas of Inquiry for the deposition of the Corporate Representative. See Exhibit A. 3. The Areas of Inquiry state in pertinent part: COMPOSITE EXHIBIT "A" COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2204 FAXCASE NO.: 19004406CA 1. The insurance policy. All allegations in the Complaint. 3. Affirmative Defenses asserted in the Defendant’s Answer to Plaintiff's Com- plaint. 4. Any issues related to coverage and disputes as to valuation of Plaintiff's Complaint. N Questions as to the Claim File 4. It is anticipated Plaintiff intends to ask questions as to the claim file. For example, this is evident in Areas of Inquiry numbered 2, 3, and 4. The corporate representative cannot be compelled to testify as to the privileged matters. Scottsdale Ins. Co. v. Camara, 813 So.2d 250; see also Matlack v. Day, 907 So.2d 577 (Fla. 5th DCA 2005) (granting insured's motion for protective order prohibiting deposition noticed by claimant of insurer's underwriting manager and disclosure of materials in the insurer's file pertaining to the insured; deposition and document requests were irrelevant and protected by the work product privilege). 5. Additionally, any adjuster notes, emails, and financial and statistical data are not discoverable in an insurer’s claim file or underwriting file. See State Farm Mutual Automobile Ins. Co. v. O’Hearn, 975 So.2d 633 (Fla. 2nd DCA 2008). 6. Since Plaintiffs Areas of Inquiry are incredibly vague and broad, it is uncertain specifically what they are specifically requesting, Defendant is seeking a protective order as to any testimony or documents that are solely derived from the claim file or underwriting file that are privileged. 2 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 19004406CA Policy and Procedures 7. Again, Plaintiff's Areas of Inquiry are vague and overbroad and it is unclear what information is specifically being requested. Defendant is seeking a protective order on any questions in regards to policies and procedures. For example, this is evident in Areas of Inquiry numbered 1, 3, and 4. 8. In this first party action the policy and procedures are not discoverable. See General Star Indemnity Company v. Atlantic Hospitality of Florida, 93 So. 3d 501 (Fla. 3% DCA 2012); State Farm Florida Ins. Co. v. Desai, 106 So. 3d 5 (Fla. 3 DCA 2013); State Farm Mutual Automobile Ins. Co. v. O’Hearn, 975 So.2d 633 (Fla. 2nd DCA 2008). 9. Defendant files this motion for protective order and requests for the Court to grant this motion and order that the Corporate Representative cannot provide testimony regarding its policies and procedures. WHEREFORE, Defendant files this motion for protective order and requests for the Court to grant this motion and order 1) that the Corporate Representative cannot provide testimony which is solely derived from the claim; 2) that the Corporate Representative cannot provide testimony regarding its policies and procedures; 3) that the Corporate Representative cannot provide testimony regarding its underwriting file; 4) that the Corporate Representative cannot provide testimony regarding policy interpretation; 5) that the Corporate Representative cannot produce documents which are privileged. 3 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 19004406CA CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 5" day of October, 2020, a true and correct copy of the foregoing was filed with the Clerk of Bay County by using the Florida Courts e- Filing Portal, which will send an automatic e-mail message to the following parties regis- tered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie, 2665 S. Bayshore Drive, Suite 601, Coconut Grove, FL 33133, justin@kendalllaw.com, justing@kkpfirm.com, jenni@kkpfirm.com. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant 4301 West Boy Scout Boulevard Suite 400 Tampa, Florida 33607 Telephone (813) 509-2686 Facsimile (813) 286-2900 Primary e-mail: paydon.broeder@csklegal.com Secondary e-mail: katherine. moran@cskle- gal.com Alternative e-mail: michael.schweitzer@csklegal.com By: s/ Katherine L. Moran KATHERINE L. MORAN Florida Bar No.: 1018653 PAYDON R. BROEDER Florida Bar No.: 106881 4 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX10. EXHIBIT A SCHEDULE A The allegations set forth in the Complaint. The Insurance Policy entered into between the Insurer and the Insured as referenced in the Complaint. All facts related to the Insurer’s involvement in the Insured’s claim as referenced in the Complaint. All facts related to communications between the Insured and agents of the Insurer as it relates to the allegations set forth in the Complaint. The adjustment and claim handling of the instant claim alleged in the Complaint. . The dollar value of the Insured’s damages. All facts and information supporting your defenses to the Plaintiff(s) claim for insurance proceeds as alleged in the Complaint. All facts and information supporting Your Answer and Affirrmative Defenses. All facts and information supporting any defense or exclusion of coverage under the Insurance Policy entered into between Plaintiff and Defendant as referenced in the Complaint. The identity, job title, job description and activitied of all persons (including any non- employees) who participated in any way in Defendant’s investigation of the Loss as described in the Complaint. SCHEDULE B Please bring a copy of all documents in your possession for the instant Claim as defined in the Complaint that are not protected by a claimed privilege. If you are not producing documents pursuant to this Schedule B request because you are claiming a privilege please provide a privilege log. If a document is not produced and not referenced on a privilege log we will assume it does not exist.Filing # 114436836 E-Filed 10/05/2020 02:41:06 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CASE NO.: 19004406CA JAMES R. SMITH, Plaintiff, v. SECURITY FIRST INSURANCE COMPANY, Defendant. DEFENDANT’S MOTION FOR PROTECTIVE ORDER TO PLAINTIFF’S REQUEST TO DEPOSE DEFENDANT'S DESK ADJUSTER Defendant, SECURITY FIRST INSURANCE COMPANY (“Security First”), by and through undersigned counsel, hereby files its Motion for Protective Order and Objections concerning Plaintiff's Request to Take the Deposition of Defendant's Desk Adjuster and as grounds states: 1. Plaintiff filed suit against Security First for alleged breach of contract as a result of a dispute over insurance benefits related to an alleged water claim. 2. Plaintiff has requested the deposition of Defendant’s Desk Adjuster, Hida Smith, 3. Defendant seeks an order of protecting preventing Plaintiff from seeking testimony from the Desk Adjuster concerning the following: a. the handling and processing of the claim; b. interpretation of the subject policy; c. the basis for the denial, reduction and/or non-payment of the subject claim, and;CASE NO.: 19-002028-Cl d. Information regarding the appraisal, estimate and/or other computation used to determine the value of the loss. 4. As Plaintiff has not provided any Areas of Inquiry, the requested deposition is extremely vague, ambiguous, and may seek protected and privileged information. 5. Hida Smith served only in the capacity of a Desk Adjuster in Defendant’s investigation of the subject claim, has not been designated as Defendant’s corporate representative, and therefore, Plaintiff's request for testimony concerning same is improper. 6. Hida Smith is being offered by Defendant strictly as a fact witness based upon personal knowledge and observations during the resulting from the inspection of Plaintiff's property in relation to the subject claim. 7. As such, Defendant seeks to restrict Plaintiffs intended questioning of its Desk Adjuster to personal knowledge of the facts underlying the claim. MEMORANDUM OF LAW L Defendant’s Desk Adjuster, Hida Smiths testimony concerning materials in the claim file and the handling and processing of the claim are privileged and not discoverable. Any testimony by Hida smith concerning the contents of and information contained in the materials within the claims file is premature and not discoverable, unless there is a claim for bad faith. Defendant objects to testimony regarding claims handling and claim file materials, pursuant to well settled Florida law. Am. Home Assur. Co. v. Vreeland, 973 So. 2d 668, 671 (Fla. 2d DCA 2008);Scottsdale Ins. Co. v. Camara de Comercio Latino- Americana de Los Estados Unidos, Inc., 813 So. 2d 250, 251 (Fla. 3d DCA 2002). Plaintiff cannot elicit information contained within the claims file which Defendant asserts is protected by privilege and is non-discoverable. Hida Smith must not be required to testify Page 2 COLE, SCOTT & KISSANE, P.A. 4301 W. Boy Scout Blvd, SUITE 400, Tampa, FL 336072019-CC-008733-O0 about such information, or produce any protected claim handling material as they are not discoverable in the instant matter. Furthermore, Defendant has previously filed a privilege log claiming claim file documents as privileged in response to Plaintiffs Request for Production. Essentially, should Plaintiff request testimony or the production of such documents at the deposition of Hida Smith, Plaintiff would be attempting to avoid and circumvent the claims file and work product privileges by having a non-party witness testify or produce privileged documentation. Therefore, Defendant moves for a protective order as to any questions regarding information that is derived from the claim file, as well as investigative reports, adjusters’ notes, underwriting files, company policies and manuals, training materials, certain personnel files, sales brochures and marketing materials, computer manuals for operating internal software and programs, details of rewards and bonus programs for employees, employee incentive and compensation programs, third party programs and related correspondences, casualty and estimating manuals, and minutes of meetings, policy interpretation/application and the claims handling, claims adjusting/estimating and decision making procedures related to the subject claim as well as all documents on Defendant's Privilege Log.2019-CC-008733-O0 I. Defendant’s Desk Adjuster’s deposition testimony should be limited to that of a fact witness. Defendant has not designated Hida Smith as its corporate representative pursuant to Florida Rule of Civil Procedure 1.310(b)(6). Hida Smith’s opinions in relation to whether the loss is covered or how Defendant comes to its decisions concerning coverage are not discoverable as they are irrelevant to a first party breach of contract dispute and constitute privileged information contained in Defendant's claim file and work product. American Reliance Ins. Co., 671 So. 2d 250. As discussed above, this premise extends to any analysis performed by the Desk Adjuster, and it would depart from the essential requirements of law to permit such discovery of materials and deposition questioning. /d. at 251. Therefore, Defendant objects to the aforementioned requests to the extent that they may seek improper discovery of a fact witness who is not being proffered to testify as a corporate representative on behalf of Defendant. And instead, to those of a fact witness, which would constitute his observations of the subject property (damages observed, overall condition, etc.) and her communications and correspondence with the Plaintiff and/or his representatives and/or third parties involved in the subject claim on the Plaintiffs behalf. Ml. Defendant’s Desk Adjuster cannot interpret the insurance policy. In a first party breach of contract action, any deposition inquiry topics concerning the interpretation of the subject insurance policy is entirely improper as no deposition can be had on the meaning of an insurance contract as it is a question of law and, thus, not subject to testimony of a fact witness. Granada Ins. Co. v. Ricks, 12 So. 3d 276 (Fla. 3d DCA 2009); Hartford Ins. Co. of the Midwest v. BellSouth, 824 So. 2d 234, 237 (Fla.2019-CC-008733-O0 4" DCA 2002). For example, in Granada Ins. Co., the Third District Court of Appeal unambiguously stated because the meaning of an insurance contract is a question of law it is not subject to opinion testimony. Granada Ins. Co., 12 So. 3d 276. Accordingly, Defendant seeks a protective order as to discussing subjects and topics related to interpretation of the insurance policy. IV. The Desk Adjuster has not been designated by Security First as a testifying expert or the corporate representative, and therefore, their deposition testimony and questioning should be limited to that of a fact witness. Security First has not designated Hida Smith as an expert witness pursuant to Fla. R. Civ. P. 1.280(b)(4) or a corporate representative pursuant to Fla. R. Civ. P. 1.310. Security First objects to the extent Plaintiff seeks improper expert discovery of a fact witness or improper corporate representative discovery of a fact witness. Security First seeks a protective order (1) limiting the documents to be produced at the deposition and protection of the claim file materials and (2) strictly limiting deposition inquiries directed toward the field adjuster and desk adjuster, to those of fact witnesses, which would constitute Hida Smith’s observations of the subject property (damages observed, overall condition, etc.) and Hida Smith’s communications and correspondences with Plaintiff and/or his representatives and other individuals and third-parties involved in the subject claim on Plaintiff's behalf. Vv. Defendant’s Desk Adjuster testimony should be limited to the subject claim. Florida law is clear that information, documentation, and materials concerning the investigation of a claim performed on behalf of an insurer and/or performed by an adjuster retained by an insurer to evaluate a claim is not discoverable. American Reliance Ins.Co.2019-CC-008733-0 v. Rosemont Condominium Homeowners Association, Inc., 671 So. 2d 250 (Fla. 3d DCA 1996). Specifically, questions and the production of documents concerning the field adjuster’s notes concerning their analysis are privileged work product and irrelevant to a first party coverage dispute, and, therefore, not discoverable. /d. at 251. Furthermore, to permit the discovery of such information and materials would be a departure from the essential requirements of law. /d. Because this is a first party action, any questions regarding general claims handling procedures would be improper and premature. Am. Home Assur. Co., 973 So. 2d at 671; Scottsdale Ins. Co., 813 So. 2d at 251. Thus, the deposition questions must be limited to the subject claim. Defendant moves for a protective order as to any questions regarding information that is derived from the claim file as well as investigative reports, adjusters’ notes, billing and invoice(s), work logs, correspondence and communications with Defendant and Defendant’s employees, representatives, supervisors, administrators and/or support staff, and the adjusters’ analysis concerning the subject claim. WHEREFORE, Defendant, SECURITY FIRST INSURANCE COMPANY, hereby files this Motion for Protective Order and requests that this Honorable Court to grant this Motion for Protective Order as to the Deposition of Desk Adjuster, Hida Smith, and enter an Order which (1) prohibits Plaintiffs from discovering otherwise privileged documents and information related to Defendant’s investigation of the reported claim, including disclosure of any and all previously objected to privileged documents; (2) prohibits Plaintiff from obtaining testimony regarding said documents and information; (3) that the Desk Adjuster will be deposed strictly as a fact witnesses and not be asked any questions concerning policy interpretation or guidelines; (4) that the Desk Adjuster’s testimony be2019-CC-008733-O0 limited to the subject claim; and (5) for any and all other relief this Court deems just and proper. [CERTIFICATE OF SERVICE ON FOLLOWING PAGE]CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 5" day of October, 2020, a true and correct copy of the foregoing was filed with the Clerk of Bay County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell & Petrie, 2665 S. Bayshore Drive, Suite 601, Coconut Grove, FL 33133, justin@kendalllaw.com, justing@kkpfirm.com, jenni@kkpfirm.com. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant 4301 West Boy Scout Boulevard Suite 400 Tampa, Florida 33607 Telephone (813) 509-2686 Facsimile (813) 286-2900 Primary e-mail: paydon.broeder@csklegal.com Secondary e-mail: katherine.moran@csklegal.com Alternative e-mail: michael.schweitzer@csklegal.com By: s/ Katherine L. Moran KATHERINE L. MORAN Florida Bar No.: 1018653 PAYDON R. BROEDER Florida Bar No.: 106881Filing # 114436836 E-Filed 10/05/2020 02:41:06 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CASE NO.: 19004406CA JAMES R. SMITH, Plaintiff, Vv. SECURITY FIRST INSURANCE COMPANY, Defendant. DEFENDANT’S MOTION FOR PROTECTIVE ORDER AS TO THE DEPOSITION OF THE FIELD ADJUSTER COMES NOW Defendant, SECURITY FIRST INSURANCE COMPANY, by and through its undersigned counsel, and pursuant to the Florida Rule of Civil Procedure hereby files this Motion for Protective Order As To The Deposition of the Field Adjuster, moves for a Protective Order pursuant to Florida Rules of Civil Procedure 1.280(c) and states as follows: FACTUAL BACKGROUND 1. This case arises out of an action for breach of contract pertaining to a homeowners’ insurance policy issued by Defendant. 2. Plaintiff requested the deposition of field adjuster, Chris Woods, to testify as to his involvement in the subject claim. However, testimony may be solicited that COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAXCASE NO.: 19-CA-007726 necessarily related to privileged claim file information and undiscoverable claims handling materials. . Pursuant to Florida Law, Plaintiff's request to take Mr. Woods’ deposition and accompanying requests for the production of various documents and materials by Mr. Woods are improper, as they seek the production of documents and materials which comprise Defendant’s claims file and, therefore, are not dis- coverable in any capacity in a breach of contract action prior to a determination of coverage. . Defendant requests the court order the parties to limit the documents and the like to be produced at the deposition and protection of the claim file materials as they are privileged and not discoverable in the current action. . Further, Defendant seeks to restrict Plaintiff's intended questioning of the field adjuster at the deposition so as to prevent tactics and strategy of the funneling of claim file information to protect materials contained within the claim file as they are privileged and not discoverable. . Moreover, Chris Woods, who served in the capacity of a field adjuster in Defendant’s investigation of the subject claim, has not been designated as a testifying expert on behalf of Defendant, and therefore, Plaintiff is not entitled to Mr. Woods’ opinions. He is being offered by Defendant strictly as a fact witness based upon his observations during his inspection of the Plaintiff's property in relation to the subject claim and his communications with Plaintiff during his investigation. 2 COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2000 FAXCASE NO.: 19-CA-007726 MEMORANDUM OF LAW |. Testimony of the Field Adjuster concerning his investigation of the claim is privileged and not discoverable. Florida Law is clear that information, documentation and materials concerning the investigation of a claim performed on behalf of an insurer and/or performed by an adjuster retained by an insurer to evaluate a claim is not discoverable. American Reliance Ins. Co. v. Rosemont Condominium Homeowners Assoc., Inc., 671 So.2d 250 (Fla. 3d DCA 1996). Specifically, questions and the production of docu