In first-party property insurance lawsuits in Florida, the central question often revolves around coverage—whether the reported claim is covered under the insurance policy. Attorneys for policyholders commonly seek the production of underwriting and claims files via written discovery or corporate representative depositions.
Traditionally, insurers object to such requests, citing work product protection and asserting that the files are not relevant and undiscoverable until the underlying coverage dispute is resolved. Precedents such as the following, have supported this objection:
State Farm Florida Ins. Co. v. Kramer, 41 So. 3d 313, 314 (Fla. 4th DCA 2010), stands for the proposition that the insurer’s claim, underwriting, and litigation files are protected work product until the breach of contract issues are resolved; and
State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010), holds “[U]ntil the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims filed or to the insurer’s business policies or practices regarding handling of claims.”
However, recent cases have found there is no hard rule that the underwriting file or claims file is not discoverable during the litigation of a coverage dispute. Avatar Prop. & Cas. Ins. Co. v. Simmons, 298 So. 3d 1252, 1254 (Fla. 5th DCA 2020), holds that a blanket objection to production of the claims file in a coverage dispute was insufficient to support a work product objection.
The issue was examined further in People’s Trust Ins. Co. v. Foster (333 So. 3d 773, Fla. 1st DCA 2022), where the court rejected the notion that underwriting manuals are never discoverable in a coverage dispute. The court acknowledged that while requests for underwriting files or manuals may sometimes be premature, they are never categorically protected from production in such disputes. This case involved Mr. and Mrs. Foster’s water damage claim due to a pipe leak, with the carrier objecting to their request for the underwriting manual. The trial court compelled the carrier to produce it. On appeal, the court found the underwriting file relevant as the carrier claimed pre-existing damage, emphasizing the absence of a privilege log as grounds to uphold the discovery order.
Most recently, the First District Court of Appeal, in Homeowner’s Choice Property & Casualty Insurance Company v. Thompson, 2023 WL 8100735 (Fla. 1st DCA Nov. 22, 2023), held that “[d]ocuments in claims or underwriting files are not automatically work product.” The Court went on to explain the carrier did not demonstrate that requested documents, such as field photographs and inspection notes, were prepared in anticipation of litigation. Additionally, the court noted the insufficiency of the carrier’s privilege log in supporting work production objections.
Plaintiffs will push for production of the full underwriting and claims files based on the Foster and Thompson cases. To prepare and safeguard production of documents the carrier does not believe should be produced, the carrier should (1) carefully review their affirmative defenses, and (2) identify relevant documents to those defenses. For instance, if the damages being claimed by the insured was documented in inspection photographs from a prior claim or within an underwriting inspection completed before the policy was issued, those documents would be relevant to a pre-existing damage defense. Photographs from an underwriting inspection or photographs from a prior claim may not be relevant if the carrier is not asserting overlap in damages with a prior claim.
After making a careful assessment, all documents contained within the underwriting and claims file relevant to the affirmative defenses asserted should be produced without objection. For documents not relevant to the defenses, a detailed privileged log should be prepared, specifying objections like prematurity or irrelevance to the case’s issues or defenses. This approach to responding to discovery aims to prevent the court from granting the insured complete access to the files and encourages the court to focus on documents relevant to the case’s coverage issues.
