Court Refuses Insurance Company’s Attempt to Thwart Florida Evidentiary Law

Posted by Phillip Warren | May 16, 2024 | 0 Comments

Evidentiary law in Florida is clear.  If a witness looks at a document to refresh her recollection while testifying, any privilege that protected the document is thereby waived and the party asking the questions is then allowed to see the document and ask questions about it.  Despite this law, Citizens Property Ins. Co. (“Citizens”) argued to the trial court in this case that its corporate representative could look at a document to answer a question asked in deposition, but then refuse to produce the document to the other side or answer any questions about it. Thankfully, Florida's Third District Court of Appeal (3rd DCA) found Citizens' desire to hide documents used to refresh its representative's recollection was an improper attempt to “thwart” the law.

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Hurricane Dispute Documents Insurance Companies Often Try to Hide

Hamilton v. Citizens was a first-party insurance case—meaning the insured, Ann Hamilton, was forced to sue her own insurance company to recover the full amount she was owed on her insurance claim.  As part of the lawsuit, Ann will seek to prove her insurance company did not accurately estimate the value of her claim.  Meaning, the estimates, reports, photo comments, and internal notes the insurance company created as a result of its inspection of the property that relate to the value of the claim will be critical evidence for Ann's case. 

This is the type of evidence our experienced insurance dispute attorneys commonly seek from insurance companies through document requests in hurricane claim cases, because it can prove the insurance company undervalued, or did not properly adjust and pay, the claim.  For this reason, it is also the same evidence the insurance company tries to hide by claiming (often without proving) that the critical documents are privileged simply because they are contained in the insurance company's “claims file.”  We have fought and won this battle multiple times (read about Workman and Thompson) resulting in the court finally telling the insurance company: “You did not prove the documents are privileged.  They are relevant and you have to turn them over.” 

Documents Used to Refresh the Insurance Witness's Recollection in Hamilton

Another way we have seen insurance companies try to hide these critical property dispute documents is by letting their corporate representative look at the documents in order to refresh her recollection for testifying, but then claim they are privileged and cannot be disclosed or asked about.  This, however, is against Florida law which states any time a witness uses a particular document to refresh her recollection for testifying, the questioning party then has the right to examine the document and ask the witness questions about it.  Thankfully, the 3rd DCA called Citizens out on this attempt to thwart black-letter Florida evidentiary law and quashed the trial court order that permitted Citizens to hide critical documents from inspection or inquisition. 

Read Hamilton v. Citizens Property Insurance Co., 49 Fla. L. Weekly D931 (Fla. 3rd DCA May 1, 2024)

Do You Feel Your Insurance Company May Be Hiding Critical Evidence from You?

Insurance companies have vast resources, and they often use them to intentionally undervalue claims and and avoid their obligation to pay policyholders timely and in full.  If you do not have an experienced professional fighting for you, your insurance company can often use tactics like the one Citizens attempted in this case to thwart your efforts to obtain the full recovery to which you are entitled.  This lengthy and costly appeal only proves insurance companies have enough attorneys working to protect their objectives.  Don't you want a team of attorneys fighting for you?  At Taylor, Warren, Weidner & Hancock, we never require any fee or cost to review your insurance claim and make sure you are aware of your rights.  If you feel you are not being treated fairly by your insurance company, contact us

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About the Author

Phillip Warren

Phillip devotes the same honor, courage, and commitment to his clients as he did in the USMC.


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