Travelers Ins. Co. v. Habelow, 81-874
| Decision Date | 18 November 1981 |
| Docket Number | No. 81-874,81-874 |
| Citation | 405 So.2d 1361 |
| Parties | TRAVELERS INSURANCE COMPANY, an insurance corporation, Petitioner, v. Lillian HABELOW, individually and as guardian on behalf of Benjamin Habelow, Incompetent, Respondent. |
| Court | Florida District Court of Appeals |
Ronald L. Harrop of Gurney, Gurney, & Handley, P. A., Orlando, for petitioner.
William G. Osborne of Robertson, Williams, Duane, Lewis & Ranson, P. A., Orlando, for respondent.
The petitioner, Travelers, seeks common-law certiorari to the Orange County Circuit Court, which rendered an order on July 6, 1981, directing the petitioner to produce for inspection by the claimant below all matters contained in its workmen's compensation claim file, including attorney-client communications. Travelers asks that this discovery order be quashed insofar as it encompasses such communications, relying on Skorman v. Hovnanian of Fla., Inc., 382 So.2d 1376 (Fla. 4th DCA 1980), and Roberts v. Jardine, 366 So.2d 124 (Fla. 2d DCA 1979). See also § 90.502, Fla. Stat. (1979).
The trial court's order apparently was predicated on Stone v. Travelers Insurance Company, 326 So.2d 241 (Fla.3d DCA 1976), a "bad faith" case. This reliance was misplaced because in defending a personal injury action on behalf of its insured, as in Stone, the attorney for the carrier is also the attorney for the insured and a fiduciary relationship exists which is not present in the instant situation. Cf. Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973), cert. discharged, 317 So.2d 725 (Fla.1975). Here, the petitioner and the respondent are in an adversarial contract dispute.
The respondent also asserts that the attorney-client privilege has been waived by the petitioner. This argument was not presented to the trial court and was not the basis for that court's ruling. Moreover, the record before us does not support this argument.
Accordingly, we grant the petition and herewith quash the discovery order entered by the trial court on July 6, 1981, insofar as it encompasses attorney-client communications. See West Volusia Hosp. Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975).
FRANK D. UPCHURCH, Jr., concurs.
The operative paragraph of the trial court order as it reads in its entirety is as follows:
2. Plaintiffs' Request to Produce any and all claims files from either the home, branch, or district office pertaining to the workmen's compensation claim of Plaintiff, Benjamin...
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