State Farm Florida Insurance Company v. Marascuillo, ___ So. 3d ___, 39 Fla. L. Weekly D1401 (Fla. 5th “DCA July 3, 2014)
The plaintiffs made a sinkhole claim in 2004. Their homeowners’ insurance company paid for the cost of compaction grouting, but the plaintiffs’ contractor employed grouted piers instead. In 2010, the plaintiff’s made another sinkhole claim, but their insurer denied the claim based on the premise that the damage was caused by improper or inadequate remediation of the 2004 claim. The plaintiffs sued their insurer for payment of the 2010 claim and sought production of the insurer’s claim files. The trial court ruled that the insurer was required to produce the first claim file but not the second. The trial court reasoned that the first claim was resolved by payment but the second claim was contested. The appellate court granted the insurer’s petition for certiorari because “the work product doctrine protects documents created in anticipation of terminated litigation as well as anticipated litigation that never materializes.” The plaintiffs were not entitled to production of either claim file because the issue of coverage was pending. The plaintiffs were entitled to request an in camera inspection to determine whether the entire contents of the file were privileged or whether the exception for need and inability to obtain the substantial equivalent without undue hardship applied. The work product doctrine also protects the opinions of nontestimonial experts in the absence of exceptional circumstances. The trial court departed from the essential requirements of law by ordering production without conducting an in camera inspection to determine whether an exception to the work product privilege applied. The court observed that Florida federal courts treat the contents of claim files as business records until the date coverage is denied. Maple Wood Partners, L.P. v. Indian Harbor Insurance Co., 295 F.R.D. 550, 629 (S.D. Fla. 2013).