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The 4th DCA in Federated National Insurance Company v. Fortin, 38 Fla. L. Weekly D1745b (Fla. 4th DCA August 14, 2013), granted Federated National's petition for writ of certiorari and quashed an order that had denied a motion for protective order that attempted to prevent the production of Federated National's entire claims file.

The claims file was sought in a declaratory judgment action to determine whether Federated National had a duty to defend an action filed against its insured, T & M Lawn Care. Whether there was coverage under the policy was an issue in dispute in the declaratory judgment action.

The 4th DCA granted the petition for writ of certiorari and cited Superior Insurance Co v. Holden, 642 So. 2d 1139, 1140 (Fla. 4th DCA 1994), wherein the 4th DCA had held that an order compelling discovery was premature when the issue of coverage was in dispute because the claims file would constitute work product. In Holden, the 4th DCA also found that a claimant could request an in camera inspection to confirm whether the claims file constituted privileged work product and/or attorney client communications.


This summary was prepared by Meghan Whisenhunt of our firm.


Meghan Whisenhunt

 

 

38 Fla. L. Weekly D1745b

 

Declaratory judgment -- Insurance -- Duty to defend -- Discovery -- Insurer's claims file -- Premature discovery -- Coverage still in dispute

FEDERATED NATIONAL INSURANCE COMPANY, Petitioner, v. JILL M. FORTIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF PAUL THIBAULT, DECEASED, and T & M LAWN CARE, INC., Respondents. 4th District. Case No. 4D13-132. August 14, 2013. Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case No. 11-320706 08. Counsel: Warren B. Kwavnick, Bruce M. Trybus, Blair M. Dickert, and Meredith Chaiken-Weiss of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for petitioner. Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Plantation, for respondent Jill M. Fortin.

(Per Curiam.) Federated National Insurance Company seeks a writ of certiorari to quash an order denying its motion for protective order to prevent the production of Federated's entire claims file. Respondent sought the claims file in its action for declaratory judgment, to determine Federated's duty to defend in an action filed against Federated's insured, T & M Lawn Care, Inc., as well as damages for that failure to defend the prior suit. The prior suit resulted in a substantial judgment against T & M and in favor of respondent. Coverage under the policy is an issue in dispute in the declaratory judgment action. We grant the writ on the authority of Superior Insurance Co. v. Holden, 642 So. 2d 1139, 1140 (Fla. 4th DCA 1994) (an order compelling discovery of claims file was premature where coverage is still in dispute, as the claims file constitutes work product; noting that a claimant may request an in camera inspection to confirm that the documents meet the criteria of work product or attorney/client privilege). (Warner, Stevenson and Taylor, JJ., concur.)



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