HERBERT KINDL, Petitioner, IN THE SUPREME COURT OF FLORIDA Case No. v. 5 th DCA CASE NO. 5D10-1722 UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent. / PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT PETITIONER S BRIEF ON JURISDICTION Mark A. Nation, Esquire Fla. Bar No.: 968560 mnation@nationlaw.com Paul W. Pritchard, Esquire Fla. Bar. No. 133371 ppritchard@nationlaw.com The Nation Law Firm 570 Crown Oak Centre Drive Longwood, FL 32750 Phone: (407)339-1104 Fax: (407)339-1118 Attorneys for Petitioner, Herbert Kindl
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii, iii STATEMENT OF JURISDICTIONAL GROUNDS... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 I. The Fifth DCA Judicially Created a Privilege Which Violates Florida Law and Gives Insurers Sole Discretion in Document Production.... 4 II. The Decision Expressly and Directly Conflicts with Decisions of the Second and Fourth DCAs on the Extremely Narrow Issue of the Propriety of In Camera Review and Discovery of Claim File Documents While Coverage Is Disputed.... 5 A. The Case Expressly and Directly Conflicts with Opinions from the Second DCA on the Same Question of Law.... 5 B. The Case Expressly and Directly Conflicts with Opinions from the Fourth DCA on the Same Question of Law.... 7 III. The Opinion Creates a Burden-Free Privilege Which Expressly and Directly Conflicts with Decisions of this Supreme Court and all the District Courts of Appeal.... 8 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 Appendix A... 13 i
TABLE OF AUTHORITIES Cases Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991)... 7 Allstate Property and Cas. Ins. Co. v. Archer, 45 So. 3d 924 (Fla. 2nd DCA 2010)...5, 6 Aravena v. Miami Dade County, 928 So. 2d 1163 (Fla. 2006)... 2 Crossley v. State, 596 So. 2d 447 (Fla. 1992)... 2 DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3rd DCA 1994)... 10 Fireman s Fund Ins. Co. v. Signorelli, 681 So. 2d 720 (Fla. 2nd DCA 1996)... 6 Florida Sheriffs' Self-Insurance Fund v. Escambia County, 585 So. 2d 461 (Fla. 1st DCA 1991)... 9 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)...1, 2 Marshall v. Anderson, 459 So. 2d 384 (Fla. 3d DCA 1984)... 4 Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So. 2d 192 (Fla. 4th DCA 1991)... 10 Paskoski v. Johnson, 626 So. 2d 338 (Fla. 4th DCA 1993)... 10 Proctor & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985)... 4 Progressive American Ins. Co. v. Lanier, 800 So. 2d 689, 690-91 (Fla. 1st DCA 2001)... 9 S. Bell Tel. & Tel. Co. v. Beard, 597 So. 2d 873 (Fla. Dist. Ct. App. 1992)... 4 Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994)... 9 State Farm Florida Ins. Co. v. Kramer, 41 So. 3d 313 (Fla. 4th DCA 2010)... 7 State v. Castellano, 460 So. 2d 480 (Fla. 1st DCA 1984)... 4 Superior Ins. Co. v. Holden, 642 So. 2d 1130 (Fla. 4th DCA 1994)... 8 Surette v. Galiardo, 323 So. 2d 53 (Fla. 4th DCA 1975)... 10 TIG Ins. Corp. of America v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001)... 10 United Services Auto Ass n v. Buckstein, 891 So. 2d 1153 (Fla. 4th DCA 2005).7, 8 ii
United Services Automobile Services Association v. Kindl, Case No.: 5D10-1722, 2010 WL 4536806, 35 Fla. L. Weekly D2508 (Fla. 5 th DCA November 12, 2010)... 1, 2, 3, 5 Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855 (Fla. 2nd DCA 1997)... 9 Statutes Section 90.501, Fla. Stat....3, 4 Rules Fla. R. App. P. 9.030(2)(A)(iv)... 1, 10 Fla. R. Civ. P. 1.280...3, 4 Constitutional Provisions Art. V, 3(b)(3), Fla. Const.... 1, 10 iii
STATEMENT OF JURISDICTIONAL GROUNDS Petitioner HERBERT KINDL (Kindl) seeks this Court s discretionary review of the Fifth DCA s opinion in United Services Automobile Services Association v. Kindl, Case No.: 5D10-1722, 2010 WL 4536806, 35 Fla. L. Weekly D2508 (Fla. 5 th DCA November 12, 2010), pursuant to Fla. R. App. P. 9.030(2)(A)(iv) and Art. V, 3(b)(3), Fla. Const. The Fifth DCA s opinion directly and expressly conflicts with opinions of other district courts of appeal and this Supreme Court on the same question of law. The opinion in this case is remarkably short and, without citations, states: 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, is improper. Kindl. Contrary to this statement, the underlying order did not compel discovery of the insurer s claim file. Instead, it ordered production of discreet items from the insurer s file, after review by the trial court in an in camera inspection. In Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981), this Court recognized that the mere basis upon which the opinion is decided can establish conflict jurisdiction, even without an express identification of the conflict: The court s opinion discusses the basis upon which it reversed the trial court s entry of a directed verdict for Ford. This discussion, of the legal principles which the court applied, supplies a sufficient basis 1
for a petition for conflict review. It is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an express conflict under section 3(b)(3). Id. at 1242. The Fifth DCA s opinion provides the grounds upon which it reversed the trial court: discovery of an insurer s claim file, while a coverage issue is pending, is improper. Kindl. These grounds supply sufficient basis for review. One test to determine express and direct conflict is whether decisions are irreconcilable. Aravena v. Miami Dade County, 928 So. 2d 1163 (Fla. 2006); Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992). The Fifth DCA s opinion is irreconcilable with opinions of other district courts of appeal regarding in camera review and discovering documents from an insurer s claim file, even while coverage is at issue, and also with opinions from this Supreme Court and all other DCAs regarding the burden to establish claims of privilege. STATEMENT OF THE CASE AND FACTS Kindl brought a breach of contract action against his homeowner s insurer, UNITED SERVICES AUTOMOBILE ASSOCIATION (USAA), for its refusal to pay Kindl s claims for storm damage. During discovery, USAA refused to produce documents from its claim file. USAA asserted all documents in its claim file were per se privileged and were never discoverable while a coverage issue was pending. USAA took no steps to support its privilege claims. 2
After in camera inspection, the trial court upheld USAA s claim of privilege on many documents, but ordered production of a few select documents. USAA petitioned for a writ of certiorari to the Fifth DCA. In its petition, USAA argued the trial court committed error by even looking at the claim file to see if its claims of privilege were valid. USAA again asserted that each document in its claim file was per se privileged during a coverage dispute. The Fifth District quashed the trial court s discovery order, flatly stating: [D]iscovery of an insurer s claim file, while a coverage issue is pending, is improper. Kindl. SUMMARY OF THE ARGUMENT This Court should review this matter because the Fifth DCA s opinion in this case has statewide impact. The opinion grants insurers a judicially-created claim file privilege which violates Section 90.501, Fla. Stat., exempts insurers from the disclosure requirements of Fla. R. Civ. P. 1.280, and allows the insurer to be the sole arbiter of its production. The Fifth DCA s opinion cannot be reconciled with opinions from the Second and Fourth DCAs regarding in camera review and discovery of documents in a claim file while the issue of coverage is outstanding. The Fifth DCA s opinion also cannot be reconciled with opinions from this Supreme Court and every other DCA in Florida, because the opinion allows a party to claim the benefit of privilege with no corresponding burden to establish the claim. 3
ARGUMENT I. The Fifth DCA Judicially Created a Privilege Which Violates Florida Law and Gives Insurers Sole Discretion in Document Production. Section 90.501, Fla. Stat., abolished common law privilege. As a result, privileges in Florida cannot be a creature of judicial construction. S. Bell Tel. & Tel. Co. v. Beard, 597 So. 2d 873 (Fla. Dist. Ct. App. 1992); Proctor & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. 1st DCA 1985); State v. Castellano, 460 So. 2d 480 (Fla. 1st DCA 1984); Marshall v. Anderson, 459 So. 2d 384 (Fla. 3d DCA 1984). Section 90.501 recognizes that the only privileges a party is entitled to claim are those that established by the evidence code, by statute, or under the Federal or Florida Constitutions. However, by holding that all discovery into any documents contained in an insurer s claim file during coverage disputes is improper, the Fifth DCA has created a claim file privilege which is not established by the evidence code, by statute, or under the Federal or Florida Constitutions. Additionally, Fla. R. Civ. P. 1.280 establishes that some information is expressly discoverable during litigation; e.g., indemnity agreements and a party s own statement. The Fifth DCA s opinion allows insurers to place these patently discoverable documents in a claim file and refuse production. The opinion also exempts insurers from the disclosure requirements of Fla. R. Civ. P. 1.280(b)(5), which requires that when a party withholds information by claims of privilege: 4
[T]he party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Discovery is unquestionably the dominion of the trial judge. However, the Fifth DCA s opinion allows an insurer to chant the magic words claim file and eliminate the trial court s ability to assess claims of privilege. The insurer has no incentive to err on the side of disclosure, but the Fifth DCA s opinion allows the insurer exercise its sole discretion whether to disclose documents. The insurer has become the ultimate authority to decide the question of privilege/protection. II. The Decision Expressly and Directly Conflicts with Decisions of the Second and Fourth DCAs on the Extremely Narrow Issue of the Propriety of In Camera Review and Discovery of Claim File Documents While Coverage Is Disputed. The Fifth DCA s opinion leaves no quarter for judicial discretion in discovery. The opinion prohibits in camera review of an insurer s unsupported claims of privilege, flatly stating such discovery is improper. Kindl. The opinion expressly and directly conflicts with cases regarding discovery into claim file materials during coverage disputes, and judicial in camera review of the claim file. A. The Case Expressly and Directly Conflicts with Opinions from the Second DCA on the Same Question of Law. Recently, in Allstate Property and Cas. Ins. Co. v. Archer, 45 So. 3d 924 (Fla. 2nd DCA 2010), contrary to the opinion in this case, the 2 nd DCA permitted production of certain claim file materials. Respondents in Archer sought a 5
deposition duces tecum of an insurance adjuster while the issue of coverage was outstanding. Indeed, the discovery was to help determine coverage (noting, pursuant to trial court s order, Allstate is required to produce documents in its claim file that relate to the issue of whether this matter falls within the scope of coverage. ). Id. at 925. The Second DCA allowed the deposition duces tecum to proceed, along with production of the documents from the claim file. Id. Similarly, in Fireman s Fund Ins. Co. v. Signorelli, 681 So. 2d 720 (Fla. 2nd DCA 1996), the trial court conducted an in camera inspection of an insurer s claim file and ordered production of: 42 pages of progress notes, 5 pages of handwritten notes, and a one-page document identifying the claim. The insurer claimed error, and the Second DCA itself reviewed the documents from the claim file. The appellate court acknowledged that some of the materials the trial court ordered produced may have been privileged, but refused to find error in the trial court s order to produce documents, including progress notes, from the claim file: Id. at 721. The one-page document identifying a matching claim is dated November 15, 1991. That document, and the progress notes made prior to April 1992, may have been prepared in anticipation of litigation, but we decline to hold that the trial court departed from the essential requirements of law in finding that they were not. 6
B. The Case Expressly and Directly Conflicts with Opinions from the Fourth DCA on the Same Question of Law. In State Farm Florida Ins. Co. v. Kramer, 41 So. 3d 313 (Fla. 4th DCA 2010), the plaintiffs sued their insurer for breach of contract and requested production of the insurer s claim file. The trial court ordered production of the materials, and later denied the insurer s request for reconsideration, deeming that objections (including privilege objections) were waived. The Fourth DCA did not hold the discovery into the claim file was improper, but instead ordered the court to evaluate the claim of privilege for the claim file materials: The circuit court shall evaluate the privilege objections, and shall conduct an in camera inspection if necessary. Id. at 315, emphasis added. In Allstate Ins. Co., Inc. v. Walker, 583 So. 2d 356 (Fla. 4th DCA 1991), the insured sought production of the first party insurer s claims file, among other allegedly privileged documents. The Fourth DCA held the trial court was required to conduct an in camera review: When the work product and attorney client privileges are asserted, the court must hold an in camera inspection of the discovery material at issue in order to rule on the applicability of the privileges. Id. at 358 (emphasis added). In United Services Auto Ass n v. Buckstein, 891 So. 2d 1153 (Fla. 4th DCA 2005), an insured requested USAA s claim file during litigation over contested coverage, and the trial court ordered production the entire claim file relating to 7
coverage, up to a certain date. Id. The Fourth DCA quashed the order to produce the entire file, yet held: On remand, the trial court should determine which documents are really in dispute and conduct an in camera inspection to determine whether any of these documents are protected by either the work product or attorney-client privilege. Id. at 1154 (emphasis added.) Lastly, in Superior Ins. Co. v. Holden, 642 So. 2d 1139 (Fla. 4th DCA 1994), the plaintiff served the insurer with a request for its entire claim file while coverage was at issue, and the trial court blindly ordered production of the entire claims file. The Fourth DCA held that production of the entire claim file was improper, but held: In the present case, the issue of coverage was still unresolved at the time of the hearing on Superior's objection to the Holdens' request for production. Therefore, the trial court departed from the essential requirements of law when it overruled Superior's objection to the requested discovery. Of course, the Holdens may request that the trial court conduct an in camera inspection of the withheld documents to ensure that each properly meets the specific criteria of the work product and/or attorney-client privilege. Id., emphasis added. The Fifth DCA s opinion in this case is inopposite the exact same conduct was labeled improper. III. The Opinion Creates a Burden-Free Privilege Which Expressly and Directly Conflicts with Decisions of this Supreme Court and all the District Courts of Appeal. In Florida, the party asserting privilege or protection from discovery bears the burden to establish the applicability an identifiable privilege. The law in this 8
case is that every document in an insurer s claim file is privileged, without the insurer meeting any burden to establish that privilege. Therefore, the opinion in this case conflicts on the same question of law with the following: Florida Supreme Court Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994) ( [T]he burden of establishing the attorney-client privilege rests on the party claiming it. ) First DCA Progressive American Ins. Co. v. Lanier, 800 So. 2d 689, 690-91 (Fla. 1st DCA 2001)( [W]e agree with the Laniers that Progressive failed to satisfy its burden of proving that it prepared these documents in anticipation of litigation. ); Florida Sheriffs' Self-Insurance Fund v. Escambia County, 585 So. 2d 461 (Fla. 1st DCA 1991) (Burden is upon party asserting discovery privilege to establish existence of each element of privilege in question); Second DCA Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855, 856 (Fla. 2nd DCA 1997) ( In response to the objection to production, Weeks filed a motion to compel which challenged the status of the documents. At that time, the burden of proof was shifted to Wal-Mart to demonstrate that the qualified privilege was applicable. ) Third DCA DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988, 990 (Fla. 3rd DCA 1994) ( If the motion to compel production challenges the status of 9
the incident reports as work product, defendants must then show that the documents were prepared in anticipation of litigation ); Fourth DCA TIG Ins. Corp. of America v. Johnson, 799 So. 2d 339, 341 (Fla. 4th DCA 2001) (Failure to satisfy burden of Rule 1.280 will result in a finding that the plaintiff-discovery opponents have failed to meet their burden of establish [sic] the applicability of the privilege. ); Paskoski v. Johnson, 626 So. 2d 338, 339 (Fla. 4th DCA 1993) (Notwithstanding entitlement to in camera inspection, party retains burden in trial court to demonstrate his entitlement to protection from production for particular materials); Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So. 2d 192, 192-93 (Fla. 4th DCA 1991) (claim of work product was unsupported); Surette v. Galiardo, 323 So. 2d 53, 58 (Fla. 4th DCA 1975) ( [T]he burden of establishing that the particular document is privileged and precluded from discovery rests on the party asserting that privilege. ) CONCLUSION The Fifth DCA s opinion has statewide impact judicially creating an absolute, unchallengeable, and unreviewable claim file privilege that only benefits insurers. The Court should exercise its discretionary review pursuant to Fla. R. App. P. 9.030(2)(A)(iv) and Art. V, 3(b)(3), Fla. Const. due to irreconcilable, express and direct conflict with other jurisdictions and this Court on the same question of law. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to JAMES S. CURTIS, ESQUIRE, Groelle & Salmon, 7650 W. Courtney Campbell Causeway, Suite 800, Tampa, FL 33607 this day of January, 2011. Mark A. Nation, Esquire Florida Bar No.: 968560 Paul W. Pritchard, Esquire Florida Bar No.: 133371 The Nation Law Firm 570 Crown Oak Centre Drive Longwood, FL 32750 Phone: (407)339-1104 Fax: (407)339-1118 Attorneys for Respondent 11
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY in compliance with 9.210(2), the font used in this Brief is Times New Roman 14-point font. Respectfully submitted, Mark A. Nation, Esquire Paul W. Pritchard, Esquire 12
Appendix A 13