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In The Doctors Company v. Thomas, 41 Fla. L. Weekly D352b (Fla. 2d DCA Feb. 5, 2016), the 2d DCA granted an insurer's petition for certiorari relief from a trial court order compelling production of its claims file. The 2d DCA found that the trial court had improperly ordered production of the insurer's claims file because insurance coverage had yet to be determined.

Petitioner, The Doctors Company, had sought relief in an underlying declaratory judgment action after its insured had entered into an unauthorized settlement in a related tort action. The Doctors Company had not yet made a determination of insurance coverage at the time of the inception of its declaratory judgment action. Randy Thomas, the representative of the estate of the tort claimant, filed a cross-claim against The Doctors Company alleging statutory and common law bad faith. After the underlying actions were consolidated, Thomas successfully obtained an order compelling The Doctors Company to produce its claims file.

The Doctors Company petitioned the 2d DCA for certiorari relief, challenging the trial court's order compelling production of its claims file. In its review, the 2d DCA held that the trial court had departed from the essential requirements of the law in ordering production of The Doctors Company's claims file as the issue of insurance coverage was unresolved, affirming its earlier decision in Zirkelbach Constr., Inc. v. Rajan, 93 So. 3d 1124 (Fla. 2d DCA 2012). The 2d DCA noted in its decision that certiorari relief was appropriate because improper production of an insurer's claims file prior to a determination of coverage could result in irreparable harm that cannot be remedied on appeal.

 

 

 

This summary was prepared by Aaron Eagan of our firm.


Aaron Eagan

 

 

41 Fla. L. Weekly D352b

 

Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering disclosure of insurer's claims file and related materials prior to any coverage determination

THE DOCTORS COMPANY, Petitioner, v. JAMES RANDALL THOMAS a/k/a Randy Thomas, as Personal Representative of the Estate of Mildred Thomas, deceased, and as Personal Representative of the Estate of Lucy Thomas, deceased, and as assignee of Kenneth W. Backstrand, M.D. and Kenneth W. Backstrand & Associates, M.D., P.A.; Kenneth W. Backstrand, M.D. and Kenneth W. Backstrand and Associates, M.D., P.A., Respondents. 2nd District. Case No. 2D15-3052. Opinion filed February 5, 2016. Petition for Writ of Certiorari to the Circuit Court for Lee County; James R. Thompson, Senior Judge. Counsel: Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Ft. Lauderdale, for Petitioner. Roy D. Wasson and Annabel C. Majewski of Wasson & Associates, Chartered, Miami, for Respondent James Randall Thomas. No appearance for remaining Respondents.

(CRENSHAW, Judge.) The Doctors Company petitions this court for a writ of certiorari to review a discovery order that denies its motion for protective order and compels the production of The Doctors Company's claims file and other investigative documents prior to any insurance coverage determination. Because the trial court's order directs The Doctors Company to turn over protected materials before any coverage determination has been made, we grant the petition and quash the order.

This now consolidated lawsuit originated as a declaratory judgment action wherein The Doctors Company sought a declaration concerning its obligations under an insurance policy issued to an insured after the insured entered into an unauthorized settlement with a tort claimant. James Randall Thomas, the personal representative of the estate of the original tort claimant, subsequently filed an action asserting various claims against The Doctors Company including claims for both statutory and common-law bad faith. After the actions were consolidated, Thomas sought discovery of information related to The Doctors Company's claims materials while the declaratory action remained pending.

We agree with The Doctors Company that the order compelling disclosure of its claims file and other related materials prior to any coverage determination departs from the essential requirements of the law. See e.g., Zirkelbach Constr., Inc. v. Rajan, 93 So. 3d 1124, 1127 (Fla. 2d DCA 2012) ("[A]n order compelling production of an insurer's claim file when the issue of coverage is unresolved has been held to constitute a departure from the essential requirements of law for which certiorari relief is appropriate."); Balboa Ins. Co. v. Vanscooter, 526 So. 2d 779, 779 (Fla. 2d DCA 1988); Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So. 2d 250, 251 (Fla. 3d DCA 2002). Such premature disclosure results in irreparable harm that cannot be remedied on plenary appeal. See e.g., Old Republic Nat'l. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818, 820 (Fla. 5th DCA 2003). Accordingly, we grant the petition for certiorari and quash the order under review.

Petition granted; order quashed. (KELLY and KHOUZAM, JJ., Concur.)

 

 

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