Party Discovery: Welsh, Joseph et al Plaintiff vs Tower Hill Prime Insurance Company Defendant

On January 19, 2021 a Party Discovery was filed involving a dispute between Joseph Welsh, Patricia Welsh, and Tower Hill Prime Insurance Company, for CA Contracts and Indebtedness in the District Court of Lee County.

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Filing # 130759906 E-Filed 07/15/2021 04:54:43 PM

99551-14
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA

JOSEPH AND PATRICIA WELSH, CIRCUIT CIVIL DIVISION

Plaintiffs, CASE NO. 21-CA-376

vs.

TOWER HILL PRIME INSURANCE
COMPANY,

Defendant.

____________________________/

DEFENDANT’S RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR
PRODUCTION

Defendant, Tower Hill Prime Insurance Company, by and through the undersigned

attorneys, and pursuant to the applicable Fla. R. Civ. P., responds to Plaintiffs’ First Request for

Production as follows:

GENERAL OBJECTIONS

1. Defendant objects to each Request to the extent the request requires production of
privileged documents including documents protected by the claims-file privilege, work-
product privilege, attorney-client privilege, information protected by the attorney work-
product doctrine, and/or other documents and information that is otherwise not subject to
discovery under the Florida Rules of Civil Procedure or the Florida Rules of Evidence.
Defendant has produced all of the discoverable documents for this claim; however,
Defendant has also described the privileged documents in its Privilege Logs.

2. Defendant objects to each Request to the extent the request requires production of
confidential and proprietary documents and information.

3. Further, Defendant objects to each Request/requesting production of personal information,
including information as to which disclosure is prohibited by law and information as to
which employees or other individuals have a reasonable expectation of privacy.

4. Defendant objects to each Request seeking production of documents and information not
in Defendant's possession, custody or control, or documents and information that was
previously requested to be produced.

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5. Defendant objects to those requests which seek information neither relevant to the issues
in this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence.

6. Defendant has not completed discovery and has not completed preparation for trial so that
additional evidence may be discovered that could impact Defendant's responses.
Defendant has provided Plaintiff with documents exemplifying the best information
available at the time; however, Defendant does not intend for the initial discovery
responses to be its final production of documents and information.

7. Defendant expressly reserves its right to amend or supplement its responses to these
Requests as discovery progresses or further information and documents become known or
available to Defendant.

8. Defendant responds to each Request with the accompanying objections, without waiving
and expressly preserving any and all objections including, but not limited to: (a) the right
to object to the relevancy, competency, and admissibility in this action or any other related
action; (b) the right to object to the use of any information or documents produced in any
subsequent proceeding or trial of this or any other action on any grounds; (c) the right to
object on any ground at any time to a demand for further response to each Request; (d) the
right to further supplement and/or amend these responses based upon discovery of
additional information or documents; and (e) the attorney-client and work-product
privileges. Any inadvertent production of any privileged information or documents is not
a waiver of these privileges.

9. Defendant produced all discoverable documents in this Response to Plaintiffs’ Requests
for Production. Defendant conducted a thorough investigation of the claim to the extent
Plaintiff cooperated; therefore, in its document production, Defendant produced all of the
discoverable, requested documents. Defendant objects to Plaintiffs’ Requests to Production
because itis unduly burdensome to request Defendant to duplicate and re-organize the
requested documents.

SPECIFIC RESPONSES AND OBJECTIONS

1. A true and correct copy of all DEC pages and the full and complete insurance policy(s)
referenced in Plaintiffs’ Complaint and a sworn statement of a corporate officer of
Defendant attesting to the coverage and authenticity of the policy.

Response: See attached policy.

2. A copy of any and all other DEC pages and insurance policy(s) which may provide
coverage to either Plaintiffs for the damages claimed in Plaintiffs’ Complaint.

Response: None known to Defendant’s knowledge.

3. A copy of each and every document (defined above) which you reasonably anticipate may
be introduced into evidence at the trial of this matter.

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Response: Unknown at this time. Any exhibits that are expected to be introduced at trial
will be disclosed pursuant to the requirements of an applicable Trial Order.

4. A copy of any and all documents which you allege may support any affirmative defense
which you have raised in this matter.

Response: Objection; this request is overbroad, vague, and seeks counsel for Defendant to
disclose their mental impressions protected by the work product privilege. See Northup v.
Acken, 865 So.2d 1267, 1272 (Fla. 5th DCA 2004) (“The overriding touchstone in this
area of civil discovery is that an attorney may not be compelled to disclose the mental
impressions resulting from his or her investigations, labor, or legal analysis unless the
product of such investigation itself is reasonably expected or intended to be presented to
the court or before a jury at trial.”).

This request also seeks work-product privileged information in the claim file. See State
Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So. 2d 633 (Fla. 2d DCA 2008); State Farm
Fire and Cas. Co. v. Valido, 662 So. 2d 1012 (Fla. 3d DCA 1995). Seminole Cas. Ins. Co.
v. Mastrominas, 6 So. 3d 1256, 1258 (Fla. 2d DCA 2009) (concluding an order “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”); Nationwide Ins. Co.
of Fla. v. Demmo, 57 So. 3d 982, 983 (Fla. 2d DCA 2011) (in first-party breach of contract
action, an order compelling production of insurer’s claim’s notes, activity logs, property
loss notice information, and property loss forms, even when the documents were created
before the insurer denied the claim, would result in irreparable harm and was a departure
from the essential requirements of the law).

Notwithstanding said objections, see attached policy, 05/15/2019 acknowledgment letter,
06/05/2019 U.S. Forensic Building Damage Evaluation Report, 06/07/2019 coverage
determination letter, 09/02/2020 correspondence from Tower Hill requesting a Sworn
Proof of Loss, and 09/11/2020 correspondence from Tower Hill requesting a Sworn Proof
of Loss. Defendant expressly reserves the right to amend this response.

5. A copy of any and all documents which you allege may support any Motion to Dismiss
which you have filed in this matter.

Response: Not applicable.

6. Copies of any and all statements, and any transcripts from any person who has knowledge
of the facts in this matter including any expert witness or the Defendant (defined above)
herein.

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(Fla. 5th DCA 2003). Indeed, “claim files, investigative reports, adjuster notes,
underwriting files, company policies and manuals, training materials, [and] certain
personnel files . . .” are either irrelevant in first-party disputes such as this or are privileged
work product. State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA
2003); see also State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA
1995). Further, such claims-related discovery absent a coverage determination is premature
at this time. See Quadomain Condominium Ass’n, Inc. v. QBE Ins. Corp., 2007 WL
1424596 (S.D. Fla. May 14, 2007); Portofini South Condominium Ass’n of West Palm
Beach, Inc. v. QBE Ins. Corp., 664 F. Supp. 2d 1265 (S.D. Fla. 2009); Nirvana Condo.
Ass’n, Inc. v. QBE Ins. Corp., 589 F. Supp. 2d 1336 (S.D. Fla. 2008); Isola Condo. Ass’n,
Inc. v. QBE Ins. Corp., 2008 WL 5169458 (S.D. Fla. Dec. 8, 2008); Buckley Towers
Condo., Inc. v. QBE Ins. Corp., 2008 WL 2490450 (S.D. Fla. June 18, 2008).

Notwithstanding said objections, see attached 06/05/2019 U.S. Forensic Building Damage
Evaluation Report and 10/13/2020 Orbis Consulting Cause and Origin Report. See also
Defendant’s privilege log below.

Date Description Privilege
05/14/2019 Property First Notice of Loss Report (3 Work product, prepared in
pages) anticipation of litigation
05/14/2019 Tower Hill Claim Notes (5 pages) Work product; prepared in
– anticipation of litigation.
01/16/2021

7. Copies of any and all recorded statement(s) and telephone conversations, as well as any
transcripts for the same which have been reduced to writing and/or transcribed, including
but not limited to Examinations Under Oath, which were taken of or provided by any
insured or their representatives (defined above) which are in your possession or control.

Response: See Response to Request for Production #6.

8. Copies of any and all recorded statement(s) and telephone conversations, as well as any
transcripts for the same which have been reduced to writing and/or transcribed, which were
taken of or provided by any witness which are in your possession or control.

Response: See Response to Request for Production #6.

9. Each and every document, report, chart, graph, object, summary, compilation of data or
other thing relied upon by any of your experts, in whole or in part, in the formulation of
any opinions and conclusion in this case.

Response: Experts are unknown at this time and will be disclosed pursuant to the
requirements of an applicable Trial Order.

10. Copies of any photographs of Plaintiffs’ Property located at 16703 Crownsbury Way, Fort
Myers, Florida 33908 which are in your possession or control.

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Response: See attached 06/05/2019 U.S. Forensic Building Damage Evaluation Report
and 10/13/2020 Orbis Consulting Cause and Origin Report. See also Defendant’s privilege
log below. See also Defendant’s privilege log below.

Date Description Privilege
Complete Underwriting File Work product, prepared in
anticipation of litigation and
underwriting privilege, not
reasonably calculated to lead
to discovery of admissible
information

11. Copies of any photographs which reflect any damage at Plaintiffs’ Property located 16703
Crownsbury Way, Fort Myers, Florida 33908 which are in your possession or control.

Response: See attached 06/05/2019 U.S. Forensic Building Damage Evaluation Report
and 10/13/2020 Orbis Consulting Cause and Origin Report.

12. Copies of any photographs of any work performed at Plaintiffs’ Property located at 16703
Crownsbury Way, Fort Myers, Florida 33908 which are in your possession or control.

Response: None to Defendant’s knowledge. Defendant expressly reserves the right to
amend its response to this Request as discovery is ongoing.

13. Copies of any and all estimates and damage appraisals and other documents (defined
above) referencing damage appraisals regarding Plaintiffs’ Property located at 16703
Crownsbury Way, Fort Myers, Florida 33908 which are in your possession or control.

Response: Objection; this request is overbroad, vague, ambiguous, and seeks documents
protect by the work-product privilege insofar as it requests information concerning the
processing, acceptance, or denial of any portion of Plaintiff’s claim of coverage and
concerns the insurer’s claims handling process in a first-party dispute such as this is
privileged. See Old Rep. Nat. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818
(Fla. 5th DCA 2003). Indeed, “claim files, investigative reports, adjuster notes,
underwriting files, company policies and manuals, training materials, [and] certain
personnel files . . .” are either irrelevant in first-party disputes such as this or are privileged
work product. State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA
2003); see also State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA
1995). Further, such claims-related discovery absent a coverage determination is
premature at this time. See Quadomain Condominium Ass’n, Inc. v. QBE Ins. Corp., 2007
WL 1424596 (S.D. Fla. May 14, 2007); Portofini South Condominium Ass’n of West Palm
Beach, Inc. v. QBE Ins. Corp., 664 F. Supp. 2d 1265 (S.D. Fla. 2009); Nirvana Condo.
Ass’n, Inc. v. QBE Ins. Corp., 589 F. Supp. 2d 1336 (S.D. Fla. 2008); Isola Condo. Ass’n,
Inc. v. QBE Ins. Corp., 2008 WL 5169458 (S.D. Fla. Dec. 8, 2008); Buckley Towers
Condo., Inc. v. QBE Ins. Corp., 2008 WL 2490450 (S.D. Fla. June 18, 2008).

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Notwithstanding said objections, see attached 10/10/2020 Orbis Consulting estimate,
10/11/2020 3G Enclosures estimate, and 10/11/2020 3G Home Exteriors estimate.

14. Copies of any and all documents (defined above) upon which you based any denials of
coverage for the loss described in Plaintiffs’ Complaint.

Response: See attached policy, 05/15/2019 acknowledgment letter, 06/05/2019 U.S.
Forensic Building Damage Evaluation Report, and 06/07/2019 coverage determination
letter. Defendant reserves the right to amend this response.

15. Copies of any and all documents (defined above) upon which you based any denials of all
or part of the amount of loss claimed by Plaintiffs.

Response: See Response to Request for Production #14.

16. If there are any denials of insurance coverage being made by Defendant, then copies are
requested of any and all applications for insurance, insurance forms, data sheets,
correspondence, notices, facsimile, e-mails and other documents (defined above) which
reference in any way any the insurance policy at issue in this matter.

Notwithstanding said objections, see attached 05/15/2019 acknowledgment letter,
06/07/2019 coverage determination letter, 09/02/2020 correspondence from Tower Hill
requesting a Sworn Proof of Loss, and 09/11/2020 correspondence from Tower Hill
requesting a Sworn Proof of Loss. See also Defendant’s privilege log below.

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Date Description Privilege
Complete Underwriting File Work product, prepared in
anticipation of litigation and
underwriting privilege, not
reasonably calculated to lead
to discovery of admissible
information

17. Copies of any and all correspondence, facsimile, notices, e-mails and other documents
(defined above) which reference in any way any notices which you provided to Plaintiffs
regarding cancellation of the insurance policy at issue in this matter.

Response: See attached 03/18/2019 Cancellation Request/Policy Release.

18. Copies of all PORS, Proof of Mailing and other documents (defined above) which reflect
in any way mailings made by you to Plaintiffs regarding cancellation of the policy of
insurance at issue in this matter.

Response: See Response to Request for Production #18.

19. All reports and current curriculum vitae from any expert(s) retained by you for any reason
regarding Plaintiffs’ claim.

Response: Experts are unknown at this time and will be disclosed pursuant to the
requirements of an applicable Trial Order.

20. Any and all e-mails, letters, facsimile, and other correspondence regarding any claims
made by Plaintiffs for homeowners’ insurance benefits as a result of the wind and water
event of September 8, 2020, including but not limited to, correspondence with experts,
independent adjusters, appraisers, inspectors, and any other third party.

Response: See attached 05/07/2019 e-mail from McGriff Insurance to Tower Hill,
05/15/2019 acknowledgment letter, 06/07/2019 coverage determination letter, 08/28/2020
e-mail from Patricia and Joseph Welsh to McGriff Insurance, 08/28/2020 e-mails from
McGriff Insurance to Patricia and Joseph Welsh, 09/01/2020 e-mail from Patricia and
Joseph Welsh to McGriff Insurance, 09/01/2020 e-mail from McGriff Insurance to Patricia
and Joseph Welsh, 09/01/2020 e-mail from McGriff Insurance to Tower Hill, 09/01/2020
e-mails from Tower Hill to McGriff Insurance, 09/02/2020 e-mail from Tower Hill to
McGriff Insurance, 09/02/2020 e-mail from Tower Hill to Patricia Welsh, 09/02/2020
correspondence from Tower Hill requesting a Sworn Proof of Loss, 09/09/2020 e-mail
from Cohen Law to Tower Hill, 09/09/2020 Cohen Law Letter of Representation,
09/11/2020 e-mail from Tower Hill to Cohen Law, 09/11/2020 correspondence from
Tower Hill requesting a Sworn Proof of Loss, 09/17/2020 e-mail from Tower Hill to Cohen
Law, 10/21/2020 e-mail from Tower Hill to Cohen Law, and 01/11/2021 e-mail from
Cohen Law to Tower Hill. See also Defendant’s privilege log below.

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Date Description Privilege
05/15/2019 E-mail from Tower Hill to U.S. Forensic Work product, prepared in
re: assignment request (1 page) anticipation of litigation
05/15/2019 E-mail from U.S. Forensic to Tower Hill Work product, prepared in
re: assignment confirmation (1 page) anticipation of litigation
05/16/2019 E-mail from U.S. Forensic to Tower Hill Work product, prepared in
re: engineer assignment (1 page) anticipation of litigation
06/06/2019 E-mail from U.S. Forensic to Tower Hill Work product, prepared in
re: report (1 page) anticipation of litigation

21. All documents reflecting any payment made to any person (defined above) or entity for
any reason as a result of the wind and water event described in Plaintiffs’ Complaint.

Response: See Defendant’s privilege log below.

Date Description Privilege
06/05/2019 U.S. Forensic invoice (1 page) Work product, prepared in
anticipation of litigation

22. All books, treaties or authority used by Defendant’s adjuster in determining what amount
to pay or deny regarding the claim at issue.

Response: None to Defendant’s knowledge.

23. All writings, memoranda, notes or other materials reflecting examination of Plaintiffs’
Property by Defendant or its agents.

Response: See attached 06/05/2019 U.S. Forensic Building Damage Evaluation Report.
See also Defendant’s privilege log below.

24. All proofs of loss received by Defendant from Plaintiffs.

Response: None to Defendant’s knowledge. Defendant expressly reserves the right to
amend its response to this Request as discovery is ongoing.

25. All estimates received by Defendant from any source for repairs to Plaintiffs’ Property.

Response: See Response to Request for Production #13.

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26. Defendant’s latest claims manual or statement of policies and procedures on the processing
or handling of homeowner’s claims.

Response: Objection; these documents are irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence.

27. Any training manuals, guides and documents which Defendant has provided to its adjusters
regarding adjusting hurricane damage claims from the past three years to the present.

Response: Objection; these documents are irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence.

28. Copies of any peer reviews, estimates, or comparative estimates generated by anyone on
Defendant’s behalf regarding the amount of loss at issue.

Response: None. Defendant expressly reserves the right to amend its response to this
Request as discovery is ongoing.

29. All documents showing the total amount paid during the past three years to any third parties
providing services, analyses, or opinions regarding Plaintiffs’ claim.

Response: See Response to Request for Production #21.

30. A copy of the contract/agreement/document (if any) that Defendant has with anyone,
including but not limited to contractors, engineers, adjusters, or experts, who may provide
testimony at the trial of this matter.

Response: Fact and expert witnesses are unknown at this time and will be disclosed
pursuant to the requirements of an applicable Trial Order.

31. All documents that relate to the drafting, meaning, and interpretation of any language,
terms, or provisions, used in the policy at issue.

Response: None to Defendant’s knowledge. Defendant expressly reserves the right to
amend its response to this Request as discovery is ongoing.

32. Pursuant to Fla. R. Civ. P. 1.310(b)(6), please produce three (3) alternative dates for the
deposition of the corporate representative(s) with the most knowledge of the claim asserted
by the Plaintiffs’ Complaint as well as the individual who was primarily responsible for
the decision to deny indemnifying Plaintiffs’ amount of loss. A designation of the
information upon which such examination will proceed will be provided under separate
cover.

Response: Dates for Defendant’s corporate representative’s deposition will be provided
under separate cover.

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33. Copies of any and all notices sent by you or your representatives (defined above) to any
insured to participate in a mediation program under Fla. Stat.§ 627.7015 and copies of any
and all PORS, Proof of Mailing and other documents (defined above) which reflect in any
way mailings made by you to any insured regarding the same.

Response: See attached 05/15/2019 acknowledgment letter.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida

ePortal to: Philip Rhodes, Esq., prhodes@itsaboutjustice.law; cara@itsaboutjustice.law; on this

15th day of July, 2021.

/s/ Cary W. Capper
Cary W. Capper, Esquire – FB#: 0932371
Teresita M. Baron, Esquire – FB#: 57256
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Tower Hill Prime Insurance Company
2800 Ponce de Leon Boulevard
Suite 800
Coral Gables, FL 33134
Phone: (305) 448-3939
Fax: (305) 441-1745
miacrtpleadings@wickersmith.com

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Case Info

Judge

Joseph C Fuller Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

July 15, 2021

Case Filing Date

January 19, 2021

County

Parties

Cary Capper Attorney for the Defendant
Hershal Spangler Attorney for the Defendant
Hershal Spangler Attorney for the Plaintiff
Joseph Welsh Plaintiff
Joseph Welsh Plaintiff
Patricia Welsh Plaintiff
Patricia Welsh Plaintiff
Tower Hill Prime Insurance Company Defendant
Tower Hill Prime Insurance Company Defendant
Teresita Baron Attorneys for Defendants
Philip Rhodes Attorneys for Plaintiffs

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