Cotton States Mut. Ins. Co. v. Turtle Reef Associates, Inc.
1984 Fla. App. LEXIS 11645, 444 So. 2d 595 (1984)
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Rule of Law:
Materials prepared by an insurer's investigator are protected by the work product privilege only if they were created in contemplation of litigation, not when they are part of a routine investigation conducted in the ordinary course of business to evaluate a claim.
Facts:
- Turtle Reef Associates, Inc. submitted an insurance claim to its insurer, Cotton States Mutual Insurance Company.
- Cotton States retained an independent claims investigator, Donald D. Webb, to investigate Turtle Reef's claim.
- Webb compiled a file containing materials and information gathered during his investigation of the claim.
- A dispute subsequently arose between Turtle Reef and Cotton States regarding the insurance claim.
Procedural Posture:
- Turtle Reef Associates, Inc. and Cotton States Mutual Insurance Company were involved in litigation in a Florida trial court.
- During discovery, Turtle Reef filed a motion to compel Cotton States to produce the contents of its investigator's file.
- The trial court granted Turtle Reef's motion, ordering production of the file.
- Cotton States, as petitioner, sought a writ of certiorari from the District Court of Appeal of Florida, Fourth District, asking it to review and quash the trial court's discovery order.
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Issue:
Are materials in an insurance investigator's file, compiled during the initial investigation of a claim, protected from discovery by the work product privilege simply because litigation is a possibility?
Opinions:
Majority - Glickstein, J.
No. The work product privilege does not automatically protect materials gathered during an insurance investigation; protection attaches only if the materials were prepared in contemplation of litigation, not in the ordinary course of business. The court explained that Florida Rule of Civil Procedure 1.280(b)(2), which governs work product, is similar to the federal rule, and federal case law provides guidance. Citing cases like Carver v. Allstate Insurance Company, the court distinguished between an insurer's early-stage investigation to determine whether to honor or resist a claim (which is ordinary course of business) and a later-stage investigation conducted when litigation is anticipated (e.g., after suspicion of arson arises). A mere likelihood of litigation is insufficient to trigger the privilege. Because the trial court had not determined the nature of the file's contents, this court remanded the case for an in-camera inspection to determine whether the materials were created in the ordinary course of business or in anticipation of litigation.
Analysis:
This decision clarifies the scope of the work product privilege in the insurance context in Florida, establishing that not all documents in an insurer's claim file are automatically protected. It mandates a factual inquiry by trial courts into the purpose and timing of the creation of such documents. The ruling prevents insurers from using the privilege as a blanket shield to hide routine, preliminary claim investigation materials, thereby promoting broader discovery for policyholders in disputes with their insurers. Future cases will require a careful, document-by-document analysis to determine when an investigation shifts from the 'ordinary course of business' to 'in contemplation of litigation.'
