Boozer v. Stalley

• Decision Date: 05 September 2014
• Docket Number: No. 5D13–4365.,5D13–4365.
• Citation: 146 So.3d 139
• Parties: Emily Lynn BOOZER and Virgil Wright, III, Esq., Petitioners, v. Douglas STALLEY, as Guardian of, etc., et al., Respondents.
• Court: Florida District Court of Appeals

146 So.3d 139

Emily Lynn BOOZER and Virgil Wright, III, Esq., Petitioners
v.
Douglas STALLEY, as Guardian of, etc., et al., Respondents.

No. 5D13–4365.

District Court of Appeal of Florida, Fifth District.

Sept. 5, 2014.

146 So.3d 140

Jane Anderson and Kansas R. Gooden, of Boyd & Jenerette, PA, Jacksonville, for Petitioner, Emily Boozer.

R. David De Armas, of Cramer Price & De Armas, PA, Orlando, for Petitioner, Virgil Wright, III, Esq.

Karissa L. Owens, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando; Sylvia H. Walbolt and Matthew J. Conigliaro, of Carlton Fields Jordan Burt, P.A., Tampa, for Respondent, Holmes Regional Medical Center, Inc.

Mark D. Tinker and Charles W. Hall, of Banker Lopez Gassler P.A., St. Petersburg, for Respondents, Allstate Insurance Company and Allstate Indemnity Company.

Shea Moxon and Angela Rodante, of Swope, Rodante P.A., Tampa, for Respondent, Douglas Stalley.

EN BANC

ORFINGER, J.

Petitioners, Emily Lynn Boozer, and her attorney, Virgil Wright, III, seek certiorari review to quash the trial court's order allowing Douglas Stalley, guardian of the property of Benjamin Hintz, to depose and obtain documents from Boozer's attorney, Wright. We consider this case en banc, sua sponte, to recede from Dunn v. National Security Fire & Casualty Co., 631 So.2d 1103 (Fla. 5th DCA 1993), insofar as it addresses the discovery of attorney-client protected communications in bad faith insurance actions. We grant the petition and quash the order to the extent that it ordered Wright to submit to a deposition and produce documents without adequate consideration of Boozer's attorney-client privilege.

146 So.3d 141

Background

Benjamin Hintz was injured in a motor vehicle accident involving Boozer. Boozer's liability for the accident was covered under at least two insurance policies, one issued by Allstate Indemnity Company and the other by Allstate Insurance Company (collectively, “Allstate”). Together, the two polices provided a total of $1.1 million in bodily injury liability coverage. Stalley, Hintz's guardian, filed an auto negligence suit against Boozer, and Allstate retained Wright to defend her. Settlement discussions failed to resolve the dispute and following a trial, Stalley recovered a judgment against Boozer in excess of $11.1 million, which was not appealed. Allstate paid its policy limits of $1.1 million, leaving the remainder of the judgment unsatisfied. Stalley's current efforts to collect on the judgment include filing a bad faith action against Allstate. Attorneys hired by Allstate, including Wright, have continued to appear on Boozer's behalf in the post-judgment proceedings.

During the third-party bad faith litigation, Stalley sought to depose Boozer's attorney, Wright, and subpoenaed his original files in the underlying action. Asserting the attorney-client privilege on behalf of Boozer and Allstate, Wright and Boozer moved for a protective order, asking the trial court to limit both the deposition and the document production to prevent the forced disclosure of attorney-client privileged information. At a hearing on the motion, Wright argued that he represented Boozer and their communications were protected by the attorney-client privilege. Wright explained that Boozer's interests were not aligned with Stalley and that she had not assigned any of her rights to him. Relying on this Court's decision in Dunn, Continental Casualty Co. v. Aqua Jet Filter Systems, Inc., 620 So.2d 1141 (Fla. 3d DCA 1993), and Baxley v. Geico General Insurance Co., No. 5:09cv343/RS/MD, 2010 WL 1780796 (N.D.Fla. May 4, 2010), the trial court denied Wright's motion and his request to stay the deposition pending appellate review of the order.

Wright appeared for his scheduled deposition with the pleadings and correspondence from his file. He answered general questions concerning how his files were organized and the case management system that the firm used. However, after he refused to answer any questions or produce any documents related to his direct representation of Boozer, the deposition was adjourned. Wright and Boozer then filed the instant petition for writ of certiorari, arguing that the trial court's denial of the motion for protective order constituted a departure from the essential requirements of the law, which causes irreparable injury that cannot be remedied on appeal. Stalley responds that long-standing Florida precedent holds that in the context of third-party bad faith litigation, he stands in the shoes of Boozer and may obtain discovery of any materials that would be available to her, including those that would otherwise be protected by the attorney-client privilege.

Analysis

Certiorari review is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) ; Montanez v. Publix Super Mkts., Inc., 135 So.3d 510, 512 (Fla. 5th DCA 2014). Discovery of certain types of information may cause material injury of an irreparable nature, including “cat out of the bag” material that constitutes work product or material protected by privilege. E.g.,

146 So.3d 142

Langston, 655 So.2d at 94 ; Wilder v. Wilder, 993 So.2d 182, 184 (Fla. 2d DCA 2008) ; Am. Home Assur. Co. v. Vreeland, 973 So.2d 668, 671 (Fla. 2d DCA 2008). “When an order directs disclosure of information that is allegedly privileged, ‘[t]he next question is whether the order departs from the essential requirements of law.’ ” Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 506 (Fla. 2d DCA 2006) (quoting Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005) ).

Whether a defense attorney retained to represent the insured and the insurer could be deposed and required to produce his file in a subsequent bad faith action brought by the injured party without an assignment from the insured was first considered in Boston Old Colony Insurance Co. v. Gutierrez, 325 So.2d 416, 416 (Fla. 3d DCA 1976). In allowing the attorney to be deposed, the third district explained:

In Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), the Florida Supreme Court established the doctrine that an insured has the right to recover against his insurer because of the latter's bad faith in failing to settle a claim against its insured within policy limits. In extending the Shingleton doctrine, the Florida Supreme Court held, in Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259 (Fla.1971), that a plaintiff in a personal injury action who obtained a judgment against a defendant in excess of the defendant's insurance coverage could bring an action for bad faith against the insurance company without [an] assignment from the defendant insured on the third party beneficiary theory. It is well established that a third person can enforce a contract entered into between others for his benefit. See 81 A.L.R. 1279. As a third party beneficiary of the insurance policy, Gutierrez stands in the same posture as that of Brown, the insured. Just as Brown would be entitled to discovery, including deposition and production of files by the attorneys, since both he (Brown) and Boston Old Colony were their clients, Gutierrez has the same right of discovery in furtherance of the preparation of his case.

Id. at 417 ; see also 620 So.2d at 1142 (“[W]e find that the trial court correctly ruled that Aqua Jet had the right to obtain Kubicki Draper's litigation files where the attorney-client and work product privileges do not preclude production of the files in a third party bad faith context.”); Stone v. Travelers Ins. Co., 326 So.2d 241, 243 (Fla. 3d DCA 1976) (citing Boston Old Colony, and holding plaintiff in third-party bad faith action against insurance company for failure to settle claim for policy limits is entitled to entire litigation file of insured's counsel from inception of lawsuit until date that judgment was entered in underlying action since plaintiff judgment creditor stands in same posture as insured).

This Court had the opportunity to consider a similar issue in Dunn, when the plaintiff in a third-party bad faith claim sought the insurer's claim and litigation file. In rejecting the insurer's claim of work product and attorney-client privilege, we reasoned:

In bad faith suits against insurance companies for failure to settle within the policy limits, all materials in the insurance company's claim file up to the date the judgment in the underlying suit are obtainable, and should be produced when sought by discovery. Continental Casualty Co. v. Aqua Jet Filter Systems, Inc., 620 So.2d 1141 (Fla. 3d DCA 1993) ; U.S. Fire Insurance Co. v. Clearwater Oaks Bank, 421 So.2d 783 (Fla. 2d DCA 1982) ; Aaron v. Allstate Insurance

146 So.3d 143

Co., 559 So.2d 275 (Fla. 4th DCA), rev. denied, 569 So.2d 1278 (Fla.1990) ; Koken v. American Service Mutual

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