Genovese v. Provident Life & Accident Insurance Co.
74 So. 3d 1064, 2011 WL 903988 (2011)
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Rule of Law:
In Florida, while work product materials are discoverable in statutory first-party bad faith actions against insurers, attorney-client privileged communications are generally not discoverable unless a specific exception or waiver applies.
Facts:
- Peter Genovese held a disability income policy issued by Provident Life and Accident Insurance Company.
- Provident Life terminated the monthly payments under Genovese’s disability income policy.
- Genovese initiated a statutory first-party bad faith action against Provident Life after the termination of payments.
- In the bad faith suit, Genovese requested production of Provident Life’s entire litigation file, including all correspondence and communications between Provident Life’s attorneys and agents regarding Genovese’s claims for benefits.
Procedural Posture:
- Peter Genovese brought a statutory first-party bad faith action against Provident Life and Accident Insurance Company in a trial court.
- The trial court issued an order compelling Provident Life to produce its entire litigation file, including all correspondence and communications made between its attorneys and agents.
- Provident Life filed a petition for writ of certiorari with the Fourth District Court of Appeal, seeking to quash the trial court’s order.
- The Fourth District Court of Appeal granted Provident Life’s petition as to attorney-client privileged information, quashed the trial court's order compelling discovery of such documents, and remanded for further proceedings.
- The Fourth District Court of Appeal certified a question to the Florida Supreme Court as one of great public importance.
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Issue:
Does the Florida Supreme Court’s holding in Allstate Indemnity Co. v. Ruiz, relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?
Opinions:
Majority - PER CURIAM
No, the Florida Supreme Court’s holding in Allstate Indemnity Co. v. Ruiz does not apply to attorney-client privileged communications in first-party bad faith actions. The Court distinguished the attorney-client privilege from the work product doctrine, emphasizing their distinct purposes and statutory foundations. The Ruiz decision explicitly focused on the work product doctrine, as indicated by its language, definitions, and citation to Florida Rule of Civil Procedure 1.280(b), which governs work product. The attorney-client privilege, codified in section 90.502, Florida Statutes, serves to encourage full and frank communication between clients and their attorneys, a goal that would be severely undermined if such communications were easily discoverable. Unlike the work product doctrine, the attorney-client privilege does not contain an exception for a party's 'need and undue hardship.' While underlying claim materials are discoverable in bad faith actions to evaluate allegations of bad faith, this discoverability under the work product exception does not extend to communications protected by attorney-client privilege. However, the Court acknowledged that if an insurer hires an attorney to both investigate a claim and render legal advice, an in camera inspection by the trial court is necessary to determine if materials are truly protected legal advice or purely investigatory. The opinion also noted that the privilege is subject to statutory or judicially created waivers, such as the 'at issue' doctrine where an insurer raises advice of counsel as a defense.
Concurring - Justice PARIENTE
Yes, I agree that the statutory attorney-client privilege has not been expressly abrogated by the Legislature in first-party statutory bad faith claims. Justice Pariente concurred to emphasize that while the Court lacks the authority to abrogate a statutory privilege, the rationale of Ruiz for discovering claims file materials in bad faith cases remains critical. She highlighted that Ruiz aimed to avoid 'artificial and disparate discovery rules between first- and third-party bad faith claims' and acknowledged the essential role of claims file materials in determining insurer good faith. She reiterated that if an attorney's role is primarily to investigate or evaluate the underlying claim, rather than to render legal advice, those materials should not be protected by the attorney-client privilege and would be discoverable under Ruiz. Justice Pariente underscored the necessity for trial courts to conduct in camera inspections when privilege is asserted, to distinguish between materials that are truly attorney-client privileged and those that pertain to the investigation or evaluation of the underlying claim and are therefore discoverable. She noted that such an inspection was not performed by the trial court in this case and would be essential on remand.
Analysis:
This decision clarifies a critical distinction between the work product doctrine and the attorney-client privilege within the context of first-party bad faith insurance litigation in Florida. By affirming robust protection for attorney-client communications, the Court maintains the sanctity of this privilege, potentially impacting how insurers engage with counsel regarding claims. The ruling provides guidance to lower courts, particularly through the directive for in camera review, to properly delineate discoverable investigatory materials from protected legal advice, balancing the insured's need for evidence with the insurer's right to confidential legal counsel. This strengthens the attorney-client privilege while acknowledging the specific discovery needs of bad faith claims established by Ruiz for work product materials.
