IN THE SUPREME COURT OF FLORIDA HERBERT KINDL, PETITIONER, UNITED SERVICES AUTOMOBILE ASSOCIATION, RESPONDENT. CASE NO.: SC11-146

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1 IN THE SUPREME COURT OF FLORIDA HERBERT KINDL, PETITIONER, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, RESPONDENT. CASE NO.: SC L.T. NO.: 5D ; 09-CA-5209-A5-L ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL RESPONDENT S BRIEF ON JURISDICTION Scott M. Bonavita, Esq. Florida Bar No.: Karl A. Forrest, Esq. Florida Bar No.: GROELLE & SALMON P.A. Waterford Plaza 7650 W. Courtney Campbell Causeway Suite 800 Tampa, FL (813) (telephone) (813) (facsimile) ATTORNEYS FOR RESPONDENT

2 TABLE OF CONTENTS TABLE OF CONTENTS.. ii TABLE OF AUTHORITIES..iii, iv, v STATEMENT OF THE CASE AND FACTS.. 1 SUMMARY OF THE ARGUMENT 2 ARGUMENT I. The Fifth DCA followed long-established Florida Law which protects an insurers claims File from discovery while an issue of coverage is pending II. III. The Fifth DCA s opinion does not conflict with decisions rendered by the Second DCA or the Fourth DCA. 5-9 The Conflict cases cited by Kindl are factually distinguishable, therefore this Court should deny review for lack of conflict jurisdiction CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...12 ii

3 TABLE OF AUTHORITIES CASES Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995)....5 Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991)..5, 9 Allstate Ins. Co. v. Swanson, 506 So. 2d 497 (Fla. 5th DCA 1987)..2 Allstate Prop. and Cas. Ins. Co. v. Archer, 45 So. 3d 924 (Fla. 2d DCA 2010)..5-7 Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So. 2d 1347 (Fla. 5th DCA 1998)....1, 4 Am. Home Assurance Co. v. Vreeland, 973 So. 2d 668 (Fla. 2d DCA 2008)...3 Fireman s Fund Ins. Co. v. Signorelli, 681 So. 2d 720 (Fla. 2d DCA 1996) 5,7, 8 Fla. Power & Light Co. v. Bell, 113 So. 2d 697 (Fla. 1959).....6, 10 Geico Gen. Ins. Co. v. Hoy, 927 So. 2d 122 (Fla. 2d DCA 2006)...1, 3 Gov't Employees Ins. Co. v. Rodriguez, 960 So. 2d 794 (Fla. 3d DCA 2007)...3 Hill v. Hill, 778 So. 2d 967 (Fla. 2001) 10 Illinois Nat l Ins. Co. v. Bolen, 997 So. 2d 1194 (Fla. 5th DCA 2008) 1, 2 iii

4 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962) 10 Little v. State, 206 So. 2d 9 (Fla. 1968).. 6 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)..6 Old Republic Nat l Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818 (Fla. 5th DCA 2003)..4 Reaves v. State, 485 So. 2d 829 (Fla. 1986)..1, 6 Rotemi Realty, Inc. v. Act Realty Co., 911 So. 2d 1181 (Fla. 2005)....4 Seminole Cas. Ins. Co. v. Mastrominas, 6 So. 3d 1256 (Fla. 2d DCA 2009)...1, 3 State Farm Fire & Cas. Co. v. Martin, 673 So. 2d 518 (Fla. 5th DCA 1996).. 2 State Farm Fire & Cas. Co. v. Valido, 662 So. 2d 1012 (Fla. 3d DCA 1995).3 State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389 (Fla. 2d DCA 2003)...2 State Farm Fla. Ins. Co. v. Kramer, 41 So. 2d 313 (Fla. 4th DCA 2010)....5, 8, 9 State v. Gray, 654 So. 2d 552 (Fla. 1995)..5 State v. Schopp, 653 So. 2d 1016 (Fla. 1995)...5 iv

5 Superior Ins. Co. v. Holden, 642 So. 2d 1139 (Fla. 4th DCA 1994)....5, 9 Tyson v. Mattair, 8 Fla. 107 (1858).5 United Services Auto Ass n v. Buckstein, 891 So. 2d 1153 (Fla. 4th DCA 2005)....5, 9 United Services Auto. Ass n v. Kindl, 49 So. 3d 807 (Fla. 5th DCA 2010)... 1, 7-10 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)....6 MISCELLANEOUS Fla. Const. art. V, 3(b)(3)...6 Fla. R. Civ. P (b)(5).....5, 7 v

6 STATEMENT OF THE CASE AND FACTS The Respondent, United Services Automobile Association ( USAA ), objects to Petitioner s, Herbert Kindl ( Kindl ), Statement of Jurisdictional Grounds and Statement of the Case and Facts as improper and factually incorrect. Kindl s Brief on Jurisdiction is improper because only those relevant facts stated within the four corners of an opinion under review, shall be considered by this Court in determining whether there is express and direct conflict of opinions justifying invocation of this Court s jurisdiction. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)(stating that conflict must be express and direct and must be apparent from the four corners of the decisions under review). Accordingly, the only facts under review for purposes of determining whether there is direct and express conflict of opinions justifying the invocation of this Court s jurisdiction are as follows: The petitioner, United Services Automobile Association, seeks certiorari relief to quash an order compelling discovery of its claim file. We grant the petition and quash the order because discovery of an insurer s claim file, while a coverage issue is pending, improper. Seminole Cas. Ins. Co. v. Mastrominas, 6 So. 3d 1256, 1258 (Fla. 2d DCA 2009); Geico Gen. Ins. Co. v. Hoy, 927 So. 2d 122, 126 (Fla. 2d DCA 2006). (insured s breach of contract suit against insurer raised a coverage issue, which was not settled by insurer s payment of part of what the insured was claiming in breach of contract action); see also Illinois Nat. Ins. Co. v. Bolen, 997 So. 2d 1194 (Fla. 5th DCA 2008); American Bankers Ins. Co. of Fla. v. Wheeler, 711 So. 2d 1347 (Fla. 5th DCA 1998). United Services Auto. Ass n v. Kindl, 49 So. 3d 807 (Fla. 5th DCA 2010). 1

7 SUMMARY OF THE ARGUMENT This Court should decline to accept jurisdiction over this case because an insurer s claims file constitutes protected work-product, and is therefore not subject to discovery until an insurer s obligation to provide coverage and benefits has been determined. This Court should further decline to accept jurisdiction because there is nothing within the four corners of the Fifth DCA s opinion under review that expressly and directly conflicts with any decision made by this Court or any other Florida DCA. Finally, this Court should decline to accept jurisdiction because the conflict cases cited in Kindl s Jurisdictional Brief are factually distinguishable from the case at bar. ARGUMENT I. The Fifth DCA followed long-established Florida Law which protects an insurers claims file from discovery while an issue of coverage is pending. It is well-established in Florida that an insurer s claims file constitutes work-product and is not subject to discovery until the insurer s obligation to provide coverage and benefits is determined. Illinois Nat l Ins. Co. v. Bolen, 997 So. 2d 1194, 1196 (Fla. 5th DCA 2008). See State Farm Fire & Cas. Co. v. Martin, 673 So. 2d 518 (Fla. 5th DCA 1996); Allstate Ins. Co. v. Swanson, 506 So. 2d 497 (Fla. 5th DCA 1987); See also State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA 2003)(quashing an order compelling State Farm to produce its claim files, investigative reports, adjuster notes, underwriting files, 2

8 company policies and manuals, training materials, etc., because the materials were either irrelevant or privileged work product); See also State Farm Fire & Casualty Co. v. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA 1995)(quashing an order compelling State Farm to produce its claim files, manuals, guidelines and documents concerning its claim handling procedures, repair estimates, etc., as those documents were deemed irrelevant or protected work product). It is also well settled in Florida that [a] trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer's claim file when the issue of coverage is in dispute and has not been resolved. Am. Home Assurance Co. v. Vreeland, 973 So. 2d 668, 671 (Fla. 2d DCA 2008); See Seminole Cas. Ins. Co. v. Mastrominas, 6, So. 3d 1256, 1258 (Fla. 2d DCA 2009)( Because the issue of coverage is in dispute and has yet to be determined, the court departed from the essential requirements of the law by ordering Seminole to disclose materials in its claim file ); See also GEICO Gen. Ins. Co. v. Hoy, 927 So. 2d 122, 126 (Fla. 2d DCA 2006)("insurer's claim file is not discoverable until the issue of coverage has been resolved"); see Gov't Employees Ins. Co. v. Rodriguez, 960 So. 2d 794, (Fla. 3d DCA 2007)( a party is not entitled to discovery of an insurer's claim file or documents relating to the insurer's business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer's obligation to provide 3

9 coverage has been established ); See also Old Republic Nat l Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818, (Fla. 5th DCA 2003)( because Republic's obligation to provide coverage has yet to be determined, the trial court departed from the essential requirements of the law in ordering production of Republic's title claim litigation files and the documents relating to its business policies and practices regarding the handling of claims, leaving Republic with no adequate remedy to review the erroneous order ); See also Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So. 2d 1347 (Fla. 5th DCA 1998)( when the issue of coverage has not been determined, it is a departure from the essential requirements of the law to order disclosure of the insurer's claims file and the insurer's claims handling manuals and materials ). Here, Kindl argues that the Fifth DCA s opinion creates a claim file privilege which is not established by the evidence code, by statute, or under the Federal or Florida Constitution. However, it is clear that the Fifth DCA followed long-standing legal principle as previously decided upon by the various DCA s in the State. As this Court noted in Rotemi Realty, Inc. v. Act Realty Co., 911 So. 2d 1181, 1188 (Fla. 2005), [t]he doctrine of stare decisis counsels us to follow our precedents unless there has been a significant change in circumstances after the adoption of the legal rule, or... an error in legal analysis. " Kindl has failed to show any significant change in circumstances or that the opinion under review 4

10 involves analytical error. As such, this Court should decline to accept jurisdiction and apply the doctrine of stare decisis which provides stability to the law and to the society governed by that law." State v. Gray, 654 So. 2d 552, 554 (Fla. 1995)(citing State v. Schopp, 653 So. 2d 1016 (Fla. 1995)(Harding, J., dissenting)); see also Tyson v. Mattair, 8 Fla. 107, 124 (1858)(noting that a commitment to precedent helps "to keep the scale of justice even and steady"). While Kindl also argues that the Fifth DCA opinion exempts insurers from the disclosure requirements of Fla. R. Civ. P (b)(5) this Court does not have jurisdiction based on alleged conflict with a rule of civil procedure. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 93 (Fla. 1995). II. The Fifth DCA s opinion does not conflict with decisions rendered by the Second DCA or the Fourth DCA. Kindl contends that this Court has discretionary jurisdiction to review the Fifth DCA s decision because it expressly and directly conflicts with decisions rendered by the Second DCA in, Allstate Property and Cas. Ins. Co. v. Archer, 45 So. 2d 924 (Fla. 2d DCA 2010) and Fireman s Fund Ins. Co. v. Signorelli, 681 So. 2d 720 (Fla. 2d DCA 1996), and decisions rendered by the Fourth DCA in State Farm Fla. Ins. Co. v. Kramer, 41 So. 2d 313 (Fla. 4th DCA 2010), Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991), United Services Auto Ass n v. Buckstein, 891 So. 2d 1153 (Fla. 4th DCA 2005) and Superior Ins. Co. v. Holden, 642 So. 2d 1139 (Fla. 4th DCA 1994). Specifically, Kindl asserts that the 5

11 Fifth DCA s opinion leaves no quarter for judicial discretion in discovery and [t]he opinion prohibits in camera review of an insurer s unsupported claims of privilege In establishing conflict jurisdiction, the moving party must show that the decision of the District Court of Appeal under review is in express and direct conflict with a decision from another district court of appeal or a decision from this Court. Fla. Const. art. V, 3(b)(3); see also Little v. State, 206 So. 2d 9, 10 (Fla. 1968). The conflict must be express and direct and must be apparent from the four corners of the decisions under review. Reaves 485 So. 2d at 30. As explained by this Court in Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960), [T]he principal situations justifying the invocation of our jurisdiction to review decisions of Court of Appeal because of alleged conflicts are, (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court.... Under the second situation the controlling facts become vital and our jurisdiction may be asserted only where the Court of Appeal has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in allegedly conflicting prior decisions of this Court. Florida Power & Lighting Co. v. Bell, Fla.1959, 113 So.2d 697. followed and quoted by Wallace v. Dean, 3 So. 3d 1035, 1039 (Fla. 2009). In Archer, production of an insurer s claims file was not at issue. Rather, Allstate filed a writ of certiorari to prevent the deposition duces tecum of one of its 6

12 adjusters. In fact, Judge Villanti noted in his concurring opinion that the order at issue does not actually order the production of any privileged materials or information Archer 45 So. 2d at 927. In dismissing the petition, the Second DCA held that Allstate has failed to establish that the taking of the deposition of its adjuster will result in irreparable harm. Therefore, we conclude that it is not appropriate for the court to bar the taking of the deposition by writ of certiorari. Archer 45 So. 3d at 925. In contrast, the sole issue before the Fifth DCA in Kindl was whether an order compelling USAA to produce its claims file was proper while a coverage issue was pending. Kindl 49 So. 3d at 808. Therein, the Fifth DCA found that the order was improper. Id. Thus, there is no direct and express conflict necessitating further review by this Court. In Signorelli, Fireman s Fund Insurance Company and Marion Ausmus sought certiorari jurisdiction to review a pretrial discovery order in the circuit court directing the insurer to produce certain items from its claims file against a workers compensation carrier for intentional infliction of emotional distress Signorelli 681 So. 2d at 721. The Second DCA ultimately quashed the order under review in part without prejudice to Signorelli to seek production of the materials [it held] were prepared in anticipation of litigation if she fulfills the requirements of Florida Rule Civil Procedure 1.280(b)(3) to overcome the qualified privilege. Id. Unlike Signorelli, Kindl involved a first-party property 7

13 insurance claim. In holding that discovery of an insurer s claim file, while a coverage issue is pending, is improper, the Fifth DCA opinion never addresses whether the materials were prepared in anticipation of litigation. Kindl 49 So. 3d at 808. Nor does the opinion contemplate Kindl fulfilling any requirements to potentially obtain such claims file materials as the Court discussed in Signorelli. Given the lack of direct and express conflict within the four corners of the opinion under review, this Court should decline to accept jurisdiction. In Kramer, State Farm filed a petition for certiorari review of an order waiving its right to raise objections and compelling production of its claim and underwriting files and documents from its litigation file. Kramer 41 So. 3d at 313. The Fourth DCA quashed the order to allow the lower court to evaluate the privilege objections and conduct an in camera inspection if necessary. Id at 315. While the decision in Kramer is on point with Kindl, with respect to the quashing of an order compelling production of an insurer s claims file, the remaining portion of the Kramer opinion does not expressly and directly conflict with the Fifth DCA opinion under review. The key distinction between Kramer and Kindl is that the court in Kindl was never presented with the issue of whether USAA s objections were waived and whether USAA may assert work product or attorney-client privilege objections. Rather, the sole issue was whether discovery of USAA s claims file was proper given that coverage was still in dispute. Kindl 8

14 49 So. 3d at 808. Because Kramer does not expressly and directly conflict with the Fifth DCA s opinion under review, and it can be reconciled, no conflict lies. In Walker, Buckstein and Holden, the Fourth DCA ultimately granted an insurer s petition for certiorari review and either quashed or remanded orders compelling production of documents pending an in camera inspection to determine whether any of the requested documents were privileged. Walker 583 So. 2d at 358; Buckstein 891 So. 2d at 1154; and Holden 642 So. 2d at However, none of these cases cited by Kindl are directly and expressly in conflict with the Fifth DCA opinion, because the quashing and/or remanding an order compelling production of documents pending an in camera inspection was never at issue. Even if this Court were to accept review of Kindl in light of these rulings issued by the Fourth DCA, a more in-depth review of the record would reveal that an in camera inspection of USAA s claims file was already performed by the trial court. As such, the issue is moot. Thus, because the cases cited by Kindl cannot be harmonized to create any express and direct conflict with the opinion under review, this Court should decline to exercise its jurisdiction to hear the case. III. The Conflict cases cited by Kindl are factually distinguishable, therefore this court should deny review for lack of conflict jurisdiction. Kindl further argues that this Court should invoke discretionary jurisdiction by asserting that the Fifth DCA s opinion creates a Burden-Free Privilege. In support of his position, Kindl cites to various case law regarding which party bears 9

15 the burden of establishing discovery privileges. Nonetheless, Florida Law is well settled in that [i]f the two cases are distinguishable in controlling factual elements then no conflict can arise. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). In other words, the primary function of this Court is to stabilize the law by a review of decisions which are patently irreconcilable. Florida Power & Light Co. v. Bell, 113 So. 2d 697, 699 (Fla. 1959). Here, the Fifth DCA opinion under review does not discuss nor does it even contemplate which party bears the burden of establishing discovery privileges. Simply put that was never at issue. The court s sole concern was whether discovery of an insurer s claims file was proper when an issue of coverage was pending. Kindl 49 So. 3d at 808. The Fifth DCA found that it was not proper. Id. Therefore, this Court should decline jurisdiction because the cases cited by Kindl are factually distinguishable, patently reconcilable, and there is no express and direct conflict between these opinions within the four corners of [the Fifth District s] decision. Hill v. Hill, 778 So. 2d 967 (Fla. 2001). CONCLUSION Based upon the foregoing arguments and authorities, USAA respectfully requests that this Honorable Court decline to accept jurisdiction over this case. 10

16 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Facsimile and U.S. Mail to: Mark Nation, Esq., The Nation Law Firm, 570 Crown Oak Centre Drive, Longwood, Florida 32750, this 9th day of February, GROELLE & SALMON, P.A. Attorneys for Respondent 7650 W. Courtney Campbell Cswy Suite 800 Tampa, Florida (fax) BY: /s/ Karl A. Forrest Scott M. Bonavita, Esquire FBN: Karl A. Forrest, Esquire FBN:

17 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this response complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). Respectfully submitted, /s/ Karl A. Forrest Karl A. Forrest, Esquire 12