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In GEICO v. Moultrop, 39 Fla. L. Weekly D2215B (Fla. 4th DCA Oct. 22, 2014), the 4th DCA reviewed a lower court's order which permitted discovery of attorney-client privileged communication in a bad faith action on GEICO's petition for writ of certiorari. The 4th DCA granted the petition and quashed that portion of the trial court's order which required production of attorney-client privileged material.

In Moultrop, the special master had determined that documents from GEICO's attorney's litigation file in the underlying coverage case were privileged but discoverable in a subsequent bad faith action against GEICO. The special master ordered production of these documents based on a holding that attorney-client information from the underlying suit was discoverable unless it pertained to the bad faith aspects of the case.

GEICO filed a petition for writ of certiorari to review the order arguing that it departed from the essential requirement of law pursuant to the Florida Supreme Court's decision in Genovese v. Provident Life and Accident Insurance Co., 74 So. 3d 1064 (Fla. 2011). The 4th DCA agreed, citing to the Florida Supreme Court's ruling in Genovese that "when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action."

Consistent with Genovese, the 4th DCA held that unless one of the exceptions applies, attorney-client privileged information is not discoverable in a bad faith claim.



 

This summary was prepared by Christine Zharova of our firm.


Christine Zharova

 

 



39 Fla. L. Weekly D2215b

 

Insurance -- Bad faith -- Discovery -- Attorney-client privilege -- Documents from insurer's attorney's litigation file in underlying coverage case -- Trial court departed from essential requirements of law in requiring production of attorney-client privileged material on grounds that the privileged information did not pertain to bad faith aspects of case

GEICO GENERAL INSURANCE COMPANY, Petitioner, v. THOMAS A. MOULTROP and PATRICIA GUY MOULTROP, Respondents. 4th District. Case No. 4D14-1844. October 22, 2014. Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Senior Judge; L.T. Case No. 50 2009 CA 42658MB. Counsel: Katina M. Hardee, B. Richard Young, and Adam A. Duke of Young, Bill, Roumbos & Boles, P.A., Miami, for petitioner. Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach; William E. Johnson of William E. Johnson, P.A., West Palm Beach; and Todd S. Stewart of the Law Offices of Todd S. Stewart, P.A., Jupiter, for respondents.

(Per Curiam.) GEICO General Insurance Company petitions for a writ of certiorari to review an order that allows discovery of attorney-client privileged communication in a bad faith action.

Following an in camera inspection, a special master determined that a number of documents from the insurer's attorney's litigation file in the underlying coverage case were privileged but discoverable in this bad faith action. The special master accepted respondents' argument that attorney-client information from the underlying suit would be discoverable unless it pertained to bad faith aspects of the case.

We agree with petitioner that the order is contrary to Genovese v. Provident Life & Accident Insurance Co., 74 So. 3d 1064 (Fla. 2011), and departs from the essential requirements of the law. Availability of the attorney-client privilege does not depend on whether this is a bad faith case or whether the information related to legal advice about bad faith. "[W]hen an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action." Id. at 1068. Absent an exception, such as when the insurer places counsel's advice at issue, attorney-client privileged information from the underlying suit is not discoverable in a bad faith case. Id. at 1068-69.

Accordingly, we grant the petition and quash the portion of the order that requires production of attorney-client privileged material on the grounds that the privileged information did not pertain to the bad faith aspects of this case. (Gross, Taylor and Levine, JJ., concur.)

 



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