Genovese v. Life
| Decision Date | 17 March 2011 |
| Docket Number | No. SC06-2508,SC06-2508 |
| Parties | PETER R. GENOVESE, M.D., Petitioner, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Respondent. |
| Court | Florida Supreme Court |
This case is before the Court for review of the decision of the Fourth District Court of Appeal in Provident Life & Accident Insurance Co. v. Genovese, 943 So. 2d 321 (Fla. 4th DCA 2006). In its decision the district court ruled upon the following question that the court certified to be of great public importance:
DOES THE FLORIDA SUPREME COURT'S HOLDING IN ALLSTATE INDEMNITY CO. V. RUIZ, 899 SO. 2D 1121 (FLA. 2005), RELATING TO DISCOVERY OF WORK PRODUCT IN FIRST-PARTY BAD FAITH ACTIONS BROUGHT PURSUANT TO SECTION 624.155, FLORIDA STATUTES, ALSO APPLY TO ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS IN THE SAME CIRCUMSTANCES?
Id. at 323. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Our decision is limited to the subject of the certified question. For the reasons discussed below, we answer the certified question in the negative and approve the portion of the Fourth District's decision precluding the discovery of attorney-client privileged information in this first-party bad faith action.
The instant action arises from the decision of the Fourth District of Appeal in Provident Life & Accident Insurance Co. v. Genovese, 943 So. 2d 321 (Fla. 4th DCA 2006). The facts of the underlying action are as follows. Peter Genovese brought a statutory first-party bad faith action against Provident Life and Accident Insurance Company ("Provident") after Provident terminated the monthly payments under Genovese's disability income policy. Following commencement of the bad faith suit, Genovese requested production of Provident's entire litigation file, including all correspondence and communications made between the attorneys representing Provident and Provident's agents regarding Genovese's claims for benefits. The trial court issued an order compelling production of the documents. Subsequently, Provident filed a petition for writ of certiorari, asking the Fourth District to quash the trial court's order. Provident argued in part that this Court's decision in Ruiz did not allow for the discovery of documents protected by the attorney-client privilege.
The district court granted the petition as to the information covered by the attorney-client privilege, quashed the trial court's order compelling discovery of documents protected by the attorney-client privilege, and remanded for further proceedings. In doing so, the district court cited its decision in Liberty Mutual Fire Insurance Co. v. Bennett, 939 So. 2d 1113 (Fla. 4th DCA 2006), and the First District Court of Appeal's decision in XL Specialty Insurance Co. v. Aircraft Holdings, LLC, 929 So. 2d 578 (Fla. 1st DCA 2006). Genovese, 943 So. 2d at 322-23. The Fourth District also certified the above question to be of great public importance.
The certified question asks whether our holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), permitting the discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes (2010), also applies to attorney-client privileged communications in the first-party bad faith context. Because of the uniqueness of the attorney-client privilege, we answer the certified question in the negative and hold that attorney-client privileged communications are not discoverable in a first-party action.
Section 624.155, Florida Statutes, enacted in 1982, created a statutory bad faith cause of action for first-party insureds. The enactment of section 624.155 "essentially extended the duty of an insurer to act in good faith and deal fairly inthose instances where an insured seeks first-party coverage or benefits under a policy of insurance." Ruiz, 899 So. 2d at 1126 (citing State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 59 (Fla. 1995)). Thus, an insured may bring a civil action against an insurer who does not attempt "in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests." § 624.155(1)(b)(1), Fla. Stat. (2010).
In Ruiz, we held that in first-party bad faith actions brought pursuant to section 624.155, work product materials were discoverable. At the outset, the first sentence of our opinion in Ruiz makes it clear that the only issue involved in that case was the work product doctrine. In Ruiz, we reviewed the decision of the Fourth District Court of Appeal in Allstate Indemnity Co. v. Ruiz, 780 So. 2d 239 (Fla. 4th DCA 2001), "which expressly and directly conflict[ed] with a number of cases from other district courts with regard to issues concerning application of work product privilege to shield documents from discovery in the insurance bad faith context." Ruiz, 899 So. 2d at 1122. In concluding that work product materials were discoverable in first-party bad faith actions, we then defined such work product as materials "contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages." Id. at 1129-30. Moreover, following this description, we cited Florida Rule of Civil Procedure 1.280(b), which is the rule governing the work product doctrine. Thus, based on a reading of our language in Ruiz, it is clear that the only issue being decided in Ruiz was the discovery of work product pertaining to the underlying claim in first-party bad faith actions. However, Genovese suggests that although the facts of Ruiz only concerned the work product doctrine, we held broadly that both attorney-client communications and work product should be discoverable in first-party bad faith claims against insurers. Contrary to Genovese's suggestion, our holding in Ruiz does not apply to attorney-client privileged communications in first-party bad faith actions.
The attorney-client privilege and work product doctrine are two distinct concepts. The attorney-client privilege is provided for in section 90.502, Florida Statutes (2010), which states that "[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client." § 90.502(2), Fla. Stat. (2010). "The purpose of the [attorney-client] privilege is to encourage clients to make full disclosure to their attorneys." Fisher v. United States, 425 U.S. 391, 403 (1976). However, the privilege "protects only those disclosures necessary to obtain informed legal advice." Id. "[I]f a communication with a lawyer is notmade with him in his professional capacity as a lawyer, no privilege attaches." State v. Branham, 952 So. 2d 618, 621 (Fla. 2d DCA 2007) (quoting Skorman v. Hovnanian of Fla., Inc., 382 So. 2d 1376, 1378 (Fla. 4th DCA 1980)).
Part of the purpose of discovery is to "provide each party with all available sources of proof as early as possible to facilitate trial preparation." Dodson v. Persell, 390 So. 2d 704, 706 (Fla. 1980).
Issues regarding the discovery of work product and attorney-client privileged materials in the context of bad faith claims have arisen because of the requirements a party must satisfy to pursue a bad faith action against an insurance company. In order for a party to bring a bad faith claim against an insurer, there must be an "underlying claim for coverage or benefits or an action for damages which the insured alleges was handled in bad faith by the insurer." Ruiz, 899 So.2d at 1124. Consequently, the underlying claim materials are the evidence needed to determine whether an insurer acted in bad faith, which raises the issue of what materials are discoverable in bad faith actions. Because the underlying claim materials are see Ruiz, 899 So. 2d at 1128-29, the materials fall within the confines of the exception to the work-product doctrine, and thus are discoverable.
On the other hand, the attorney-client privilege, unlike the work-product doctrine, is not concerned with the litigation needs of the opposing party. See Quarles & Brady, LLP v. Birdsall, 802 So. 2d 1205, 1206 (Fla. 2d DCA 2002) () (citation omitted); see also West Bend Mutual Ins. Co. v. Higgins, 9 So. 3d 655, 658 (Fla. 5th DCA 2009). Instead, the purpose of the privilege is to "encourage full and frank communication" between the attorney and the client. Id. at 657 (quoting Am. Tobacco v. State, 697 So. 2d 1249, 1252 (Fla. 4th DCA 1997)). This significant goal of the privilege...
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