Motion for Protective Order in CHRISTENSEN, MICHAEL vs. UNITED PROPERTY & CASUALTY INSURANCE COMPANY| Trellis.Law

On January 31, 2020 a Party Discovery was filed involving a dispute between Christensen, Jarae, Christensen, Michael, and United Property & Casualty Insurance Company, for INSURANCE CLAIM in the District Court of Bay County.

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Filing # 120650355 E-Filed 02/02/2021 11:17:30 AM

2039508
IN THE CIRCUIT COURT OF THE 14TH JUDICIAL
CIRCUIT IN AND FOR BAY COUNTY, FLORIDA

CASE NO. 20-000239-CA

MICHAEL CHRISTENSEN and JARAE
CHRISTENSEN,

Plaintiffs,

UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,

Defendant.
/

DEFENDANT’S MOTION FOR PROTECTIVE ORDER _AND OBJECTIONS AS TO
THE DEPOSITION OF DEFENDANT’S CORPORATE REPRESENTATIVE

COMES NOW, the Defendant, UNITED PROPERTY & CASUALTY INSURANCE

COMPANY, by and through its undersigned counsel, and hereby files its Motion for

Protective Order and Objections as to the Deposition of Defendant’s Corporate

Representative, and in support thereof states as follows:

1. This claim involves Plaintiffs’ first-party insurance claim for property

damages, which allegedly occurred as a result of Hurricane Michael.

2. Defendant undertook an investigation of Insureds’ claim, and ultimately,

the subject claim was paid in accordance with the terms and conditions of the Insureds’

policy of insurance.

3. Thereafter, the Plaintiffs instituted the instant action.

4. The Plaintiffs now request the deposition of Defendant’s corporate

representative.
CASE NO. 20-000239-CA

5. Plaintiffs’ Notice of Taking Videotaped Deposition Duces Tecum of

Defendant’s Corporate Representative Designate includes areas of inquiry and requests

for production that Defendant objects to on the grounds that the same are overbroad,

vague, ambiguous, and seek claims handling and procedural information which is

irrelevant and improper in a breach of contract lawsuit. See Plaintiffs’ Notice, attached as

Exhibit “A.”

6. It is abundantly clear, based on these areas of inquiry and requests for

production, that the Plaintiffs’ intent is to question Defendant’s Corporate Representative on

privileged matters, as well as on claims handling and processing, which is irrelevant to the

issues in this breach of contract action.

7. Further, the deposition testimony by a corporate representative regarding

privileged or protected insurance claim files is prohibited where the issue of coverage has

not been resolved. See Am. Home Assur. Co. v. Vreeland, 973 So.2d 668 (Fla. 2d DCA

2008).

8. Florida Rule of Civil Procedure 1.280(c) states as follows:

Upon motion by a party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is
pending may make any order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense that justice requires, including one or more of the following:
... (4) that certain matters not be inquired into, or that the scope of
the discovery be limited to certain matters; ...

9. Trial courts must be accorded broad discretion in the treatment of discovery

problems through the employment of the protective provisions contemplated by Florida Rule

of Civil Procedure 1.280. Ferrandino v. Riley, 236 So. 3d 493, 494 (Fla. 1st DCA 2018).

10. | Under well-settled Florida case law, in a first-party dispute such as this,

where coverage determinations are challenged, the plaintiff is not entitled to depose the

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CASE NO. 20-000239-CA

insurer and its representatives regarding its claim investigation or determination,

because the testimony is the insurer's work-product. See Am. Home Assurance Co. v.

Vreeland, 973 So. 2d 668, 673-72 (Fla. 2d DCA 2008)(quashing order requiring

insurance company's corporate representative to testify regarding insurer's denial of

coverage and to produce claims files as such information was work product); Scottsdale

Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813

So. 2d 250, 251-52 (Fla. 3d DCA 2002)(quashing order denying insurer's motion for

protective order from deposition and production of documents ruling that testimony of

insurer and production of claim file were protected as work product where coverage

determination was at issue); Granada Ins. Co. v. Ricks, No. 3D09-2403, 2009 WL

1393372, “1 (Fla. 3d DCA May 20, 2009)(quashing order permitting deposition of

insurer's representative regarding policies and procedures concerning claims handling

by the insurer, "Our decision is based on the universally applied rule that discovery which

concerns only potential bad faith or other purported improprieties in defending the claim

are wholly impermissible unless and until it is determined that the policy indeed provides

coverage."); See also, Liberty Mut. Ins. Co. v. Farm, Inc., 754 So. 2d 865, 866-67 (Fla.

3d DCA 2000)(quashing order compelling discovery of insurer's business practices where

coverage had not yet been determined); State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d

389, 390 (Fla. 2d DCA 2003)(quashing order requiring insurer to disclose insurer's claim

file, investigative reports, adjuster notes, underwriting files, company policies and

manuals, training materials, and other internal information as not relevant and protected

as work product in first party breach of contract action contesting insurer's determination

of amount insurer was willing to pay for damage to home); State Farm Mut. Auto. Ins. Co.

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CASE NO. 20-000239-CA

v. Cook, 744 So. 2d 567, 568 (Fla. 2d DCA 1999)(holding an insurer's internal manuals

are protected from discovery until and unless a bad faith claim is prosecuted); State Farm

Fire & Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995)(holding

homeowners insurer's claim files, manuals, guidelines and documents concerning its

claim handling procedures were irrelevant to first party dispute over insurer's refusal to

pay hurricane claim under policy, and therefore did not have to be produced and insurer's

surveillance photographs, witness statements and repair estimates were protected by

work product privilege). These rules apply even ifthe lawsuit involves a dispute over

additional benefits on a covered loss. Geico Gen. Ins. Co. v. Hoy, 927 So. 2d 122, 126

(Fla. 2d DCA 2006).

11. Neither claim file materials nor claims handling practices and procedures are

discoverable in this type of action before a determination on coverage and the amount of

damages has been made. See Fla. R. Civ. P. 1.280(b)(3); Millard Mall Servs., Inc. v.

Bolda, 155 So.3d 1272, 1274 (Fla. 4th DCA 2015)(holding reports created during loss

investigation were not subject to discovery)("Work-product protection extends to

information gathered in anticipation of litigation by corporate non-attorney employees,

including employees of a corporation's risk management department"); Castle Key Ins.

Co. v. Benitez, 124 So.3d 379, 380 (Fla. 3d DCA 2013)("Because the trial court's order

at issue directed the production of Castle Key's ‘claims file’ while the issue of coverage is

stillin dispute, the order departs from the essential requirements of law"); State Farm Fla.

Ins. Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4th DCA 2012)(holding that trial court caused

irreparable harm and departed from the essential requirements of law by compelling

disclosure insurer's claim file during coverage dispute); State Farm Fla. Ins. Co. v.

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CASE NO. 20-000239-CA

Ramirez, 86 So.3d 1198 (Fla. 3d DCA 2012)(quashing order compelling production of

claim file during coverage dispute); Heartland Express, Inc. of lowa v. Torres, 90 So.3d

365, 367-68 (Fla. 1st DCA 2012)(holding that trial court departed from essential

requirements of law by compelling disclosure of risk management investigation materials,

noting that work-product privilege protects both fact work-product--information gathered

in anticipation of litigation—and opinion work-product--attorney mental impressions,

conclusions, and theories and opinions concerning litigation)(citing Acevedo v. Doctors

Hosp., Inc., 68 So.3d 949 (Fla. 3d DCA 2011)); Nationwide Ins. Co. of Fla. v. Demmo, 57

So.3d 982, 984 (Fla. 2d DCA 2011)(holding that insurer was not required to disclose claim

file documents during litigation of coverage issue); United Servs. Auto. Assoc. v. Kind,

49 So.3d 807 (Fla. 5th DCA 2010)("discovery of an insurer's claim file,while a coverage

issue is pending, is improper”); //l.
Nat'l Ins. Co. v. Bolen, 997 So.2d 1194, 1196 (Fla. 5th

DCA 2008)(holding that trial court departed from the essential requirements of law by

ordering insurer desk adjuster to bring claim file materials to deposition before

determination of coverage); Gov't Employees Ins. Co. v. Rodriguez, 960 So.2d 794, 795-

96 (Fla. 3d DCA 2007); Geico Gen. Ins. Co. v. Hoy, 927 So.2d 122, 124-25 (Fla. 2d DCA

2006)(holding that insured was not entitled to insurer's claim file materials while seeking

coverage determination); Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347, 1348

(Fla. 5th DCA 1998)(holding that trial court improperly compelled disclosure of privileged

claim file before the coverage issue was resolved)("For the same reason, compelling

disclosure of claims handling manuals and materials and the claims adjuster's personnel

file is a departure from the essential requirements of law"); Superior Ins. Co. v. Holden,

642 So.2d 1139, 1140 (Fla. 4th DCA 1994)("We agree with Superior that the order

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CASE NO. 20-000239-CA

compelling disclosure of its claims file is premature because the issue of Superior's

obligation to provide coverage has not yet been determined")(citing Balboa Ins. Co. v.

Vanscooter, 526 So.2d 779 (Fla. 2d DCA 1988)); U.S. Fire Ins. Co. v. Clearwater Oaks

Bank, 421 So.2d 783, 784 (Fla. 2d DCA 1982)(". .the plaintiff cannot compel disclosure

of the carrier's work product, its claim file, where the cause of action is a first party claim

for coverage under the policy")(citing Agri-Business v. Bridges, 397 So.2d 394 (Fla. 1st

DCA 1981)); see also Am. Home Assur. Co. v. Vreeland, 973 So.2d 668, 671-72 (Fla.

2d DCA 2008)(holding that trial court order compelling production of insurer's claim file

during coverage dispute departed from the essential requirements of law)("Deposition

testimony by a corporate representative on these privileged matters is likewise

prohibited")(citing Scottsdale, infra); //, Nat'l Ins. Co. v. Bolen, 997 So.2d 1194, 1196

(Fla. 5th DCA 2008)(holding that trialcourt departed from the essential requirements of

law by ordering insurer desk adjuster to bring privileged claim file materials to deposition

before determination of coverage); and Scottsdale Ins. Co. v. Camara De Comercio

Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250, 251-52 (Fla. 3d DCA

2002)(holding that plaintiff was not entitled to insurer's claim file before determination on

coverage, and that insurer's corporate representative could not be compelled to testify

about information contained in insurer's privileged claim file documents).

12. Field Adjuster notes, bid analyses, conversations and work occurring

during loss investigation are likewise not discoverable before a determination on

coverage and damages has been made. See Am. Reliance Ins. Co. v. Rosemont Condo.

Homeowners Assoc., Inc., 671 So.2d 250, 251 (Fla. 3d DCA 1996)(holding that

independent adjuster's investigation work, including notes and bid analyses, and

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CASE NO. 20-000239-CA

conversations occurring during such time, constituted work product in a first party

property dispute and were not discoverable)("The trial court departed from the essential

requirements of law in denying [the insurer's] exceptions regarding the [adjuster's]

deposition. The information sought of [the adjuster] is primarily work product, intertwined

with some matters irrelevant to this first party dispute.")(citing State Farm Fire & Cas.

Co. v. Valido, 662 So.2d 1012 (Fla. 3d DCA 1995)); Vesta Fire Ins. v. Figueroa, 821

So.2d 1233 (Fla. 5th DCA 2002)(finding that independent adjuster's file constitutes work

product as relating to the insurer's loss investigation and claim file); Castle Key Ins. Co.

v. Benitez, 124 So.3d 379, 380-81 (Fla. 3d DCA 2013)(holding trial court order departed

from the essential requirements of law by directing production of insurer's written

communications regarding the claim and documents it relied upon for the coverage

decision before a resolution of the underlying cause of action); See a/so Allstate Ins. Co.

v. Langston, 655 So.2d 91, 94-95 (Fla. 1995)(holding that relevance is a threshold to

discovery)("We therefore quash the district court decision to the extent that itpermits

discovery even when it has been affirmatively established that such discovery is neither

relevant nor will lead to the discovery of relevant information.”).

13. | Based upon the foregoing, Florida case law clearly prohibits the Plaintiffs

from requesting such privileged documents or inquiring into such privileged areas while

deposing Defendant's Corporate Representative.

14. | The undersigned certifies that this Motion is made in good faith and not for

the purpose of unduly delaying these proceedings.

WHEREFORE, the Defendant, UNITED PROPERTY & CASUALTY INSURANCE

COMPANY, respectfully prays that this Honorable Court enter an order of protection

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CASE NO. 20-000239-CA

regarding the deposition of Defendant’s Corporate Representative, and any such other

and further relief as this Court deems just and proper.

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a copy hereof has been furnished by service through the

eportal to Kenneth R. Duboff, Esquire, Duboff Law Firm, 680 Northeast 127th Street,

North Miami, FL 33161, Attorney for Plaintiffs, courtdocument@dubofflawfirm.com on

this _2°¢ day of February _,2020.

CONROY SIMBERG
Attorney for Defendant, United Property & Casualty
Insurance Company
325 John Knox Road, Atrium Building, Suite 105
Tallahassee, FL 32303
Telephone: (850) 383-9103
Facsimile: (850) 383-9109
Primary Email: eservicetal@conroysimberg.com
Secondary Email: mbonfanti@conroysimberg.com
mbirster@conroysimberg.com

By: _/s/Michael J. Bonfanti
Michael J. Bonfanti, Esquire
Florida Bar No. 013271
T. Mattie Birster, Esquire
Florida Bar No. 1010797

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Filing # 119651159 E-Filed 01/14/2021 03:15:38 PM EXHIBIT "A"

IN THE CIRCUIT COURT IN AND FOR BAY COUNTY, FLORIDA

MICHAEL CHRISTENSEN and JARAE CASE NO. 20000239CA
CHRISTENSEN,

Plaintiff,
Vs.

UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,

Defendant.

NOTICE OF TAKING VIDEOTAPED DEPOSITION DUCES TECUM OF
DEFENDANT'S CORPORATE REPRESENTATIVE DESIGNATE

PLEASE TAKE NOTICE that the undersigned will take the videotaped deposition of:

NAME: DEFENDANT'S CORPORATE DESIGNATE who consents to testify
on its behalf and to give complete, knowledgeable and binding answers on
behalf of Defendant regarding the following:

(a) Plaintiffs’ notice of loss in October 10, 2018 (hereafter "the Loss");

(b) Defendant's investigation in adjustment of Plaintiffs’ Loss (hereafter "the Claim");

(c) All documents and other tangible evidence identified or obtained by Defendant
during its investigation in the Loss and Claim;

(d) All correspondence and documents issued by Defendant to Plaintiffs related to the
Loss and Claim;

(e) All correspondence and documents received from Plaintiffs by Defendant related
to the Loss and Claim;

(f) Defendant's factual determinations and conclusions regarding the cause ofthe Loss;

(g) Defendant's determinations regarding the scope of the physical damage caused by
the Loss and/or the cost to repair the property to return it to its pre-Loss condition;

(h) Defendant's coverage decision/claim position regarding the Loss and Claim;

(i) All of the evidence, whether admissible or not, known to Defendant at the time it
reached and stated its pre-suit coverage decision/claim position regarding the Loss
and Claim that either supports or rebuts that determination;

DUBOFF
(j) Each and every averment contained in Defendant's "responsive pleading";

(k) All of the evidence, whether admissible or not, known to Defendant that supports
each and every averment contained in its responsive pleading;

(1) Each and every affirmative defense pled by Defendant;

(m) All of the evidence, whether admissible or not, known to Defendant that supports
each and every affirmative defense contained in its responsive pleading;

(n) All of the evidence, whether admissible or not, that supports any of Defendant's
Answers to Interrogatories;

(0) All of the evidence, whether admissible or not, that supports any of Defendant's
Responses to any Requests for Admissions;

(p) All of the evidence, whether admissible or not, that supports any of the legal
arguments made by Defendant in any of the motions for summary judgment that it
has filed in this matter.

When the representative appears, he/she is required to bring and to have with him/her (but not
be required to produce) the following items:

(a) All documents, exhibits, facts and materials representing or containing facts upon
which the deponent has, will or may rely in giving testimony in this case or which
may be used to represent, illustrate or explain testimony in this case;

(b) Any reports, studies, data compilations, data bases, or other information of a
statistical nature upon which the deponent has, will or may rely in giving testimony
in this case or which may be used to represent, illustrate or explain testimony in
this case;

(d) The entire file related to Case No. 20000239CA and/or relating to the property
located at 3015 Longwood Circle, Panama City, FL 32405;

(e) Any and all materials reviewed by the deponent in this matter - including, but not
limited to, depositions, correspondence, photographs, reports, books, articles,
literature, films, tests, experiments, statements, results of inspections, drawings,
blueprints, or other reference material which he/she has, will or may rely in giving
testimony in this case or which may be used to represent, illustrate or explain
testimony in this case;

DUBOFF
(f) Any and all reports which were furnished to the dependent by any experts in this
case which he/she has, will or may rely on in giving testimony in this case or which
may be used to represent, illustrate or explain testimony in this case;

(g) Any and allnotes, writing, memoranda, etc.,which the deponent has prepared in
this case which he/she has, will or may rely on in giving testimony in this case or
which may be used to represent, illustrate or explain testimony in this case;

(h) Any and all notes taken or prepared and analysis performed by the deponent which
were prepared for and regarding the subject claim and subject lawsuit and which
he/she has, will or may rely on in giving testimony in this case or which may be
used to represent, illustrate or explain testimony in this case;

Date: Thursday, May 13", 2021
Time: 10:00 am
Location: Universal Court Reporting — Zoom Video Conference
(the link will be sent in a separate email)

Upon oral examination before Universal Court Reporting, Videographer and/or any other Notary
Public or officer authorized by law to take depositions in the State of Florida. The oral examination
will continue from day to day until completed. The deposition is being taken for the purpose of
discovery, for use at trial or for such other purposes as are permitted under Fla.R.Civ.P. 1.280.,
1.310, 1.350, 1.360, 1.380, 1.390, 1.410; or Fed.R.Civ.P.30.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on this 14" day of January, 2021, a true and correct copy of
the foregoing was emailed electronically, filed and served through the Florida Court’s E-Filing
Portal to: Michael J. Bonfanti, Esq., of CONROY SIMBERG, 325 John Knox Road, Atrium
Building, Suite 105,, Tallahassee, Florida, 32303, at eservicetal@conroysimberg.com;
mbonfanti@conroysimberg.com.

DUBOFF LAW FIRM
ATTORNEYS FOR PLAINTIFFS
680 N.E. 127 STREET
NORTH MIAMI, FLORIDA 33161
TELEPHONE (305) 899-0085
COURTDOCUMENT(@DUBOFFLAWFIRM.COM
By:_/S/ KENNETH R. DUBOFF
KENNETH R. DUBOFF, ESQ.

DUBOFF

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SMILEY, ELIJAH Track Judge’s New Case

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Document Filed Date

February 02, 2021

Case Filing Date

January 31, 2020

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Party Discovery: CHRISTENSEN, MICHAEL vs. UNITED PROPERTY & CASUALTY INSURANCE COMPANY

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