January 2, 2024 UPDATE:
The First DCA denied Homeowners Choice's request for the Florida Supreme Court to review the discovery ruling discussed below and to rule on two questions of alleged great importance: 1) whether the type of action (breach of contract versus bad faith) governs the ability to discover claims file materials; and 2) whether documents generated in an insurer's ordinary investigation of a claim constitute work product. We are excited and pleased with the First DCA's decision to stand behind its ruling in favor of policyholders and deny Homeowners Choice's request.
View the First DCA's Order denying this requesthere.
December 5, 2023 Article:
When insurance companies try to hide critical evidence, TWWH fights back. Many Florida homeowners have experienced this: Your home is damaged by a fire, water loss, or storm but the insurance company denies, claiming the damage is pre-existing (not covered)—i.e., wear and tear, deterioration, faulty workmanship, or negligent maintenance. As we have discussed here before, most insurance companies base these erroneous conclusions on reports and notes created during the initial inspection. But, when we ask for these documents in litigation, insurers often refuse, claiming (wrongfully) they are protected “work product” that was prepared in anticipation the claim would result in a lawsuit. In this case, the ploy did not work. TWWH attorney, Brian Hancock, fought the matter all the way to the First District Court of Appeal (DCA) and won, obtaining a written opinion affirming the production of these critical materials from the insurer's claims file. Here's how the appeal came about:
Homeowners Choice's Denial of the Damage and Refusal to Produce Critical Documents
In September 2020, Hurricane Sally damaged our clients, Mr. and Mrs. Thompson's, home in Pensacola. Although our clients obtained estimates showing the cost to repair the covered damage under the policy was over $285,000, Homeowners Choice claimed most of the damage was pre-existing and found only $2,058 in covered damage. Left with no choice, the Thompsons filed a breach of contract lawsuit for Homeowners Choice's failure to pay as the policy required. When TWWH asked for the field adjuster's notes and reports that would support Homeowners Choice's claim the damage was pre-existing, Homeowners Choice claimed the documents were protected because it anticipated—“just days after the hurricane and before any coverage determination had occurred”—that the claim would end up in litigation. Thankfully, the trial court, Judge Amy Brodersen in Escambia County, saw through this unfair attempt to hide relevant documents and instructed Homeowners Choice to produce the field adjuster's notes and reports. Rather than produce the documents, Homeowners Choice chose to continue its fight and appeal Judge Brodersen's order for production to the First DCA.
First DCA's Affirmation of the Trial Court's Order for Production
On appeal, Homeowners Choice argued it was entitled to protection over its entire claims and underwriting files as “work product” without being required to prove the materials were created in anticipation of litigation. Agreeing with attorney Hancock's arguments on appeal, the First DCA rejected Homeowners Choice's position based on its 2022 ruling in Foster, finding there is no categorical prohibition on discovery of claims and underwriting materials in the breach of contract action if they are relevant to the damages and defenses asserted, as they were here. People's Tr. Ins. Co. v. Foster, 333 So. 3d 773, 774 (Fla. 1st DCA 2022). The First DCA found relevant documents created “just days after the hurricane and before any coverage determination had occurred” to be part of an insurer's “basic evaluation” of the claim and not protected work product. As such, the First DCA ruled in favor of the Thompsons and issued a written opinion affirming Judge Brodersen's order for production of the relevant claims file materials.
We are proud of the First DCA's dutiful application of its own precedent to the facts of this case in affirming the order for production. We are also incredibly proud of our clients' determination and perseverance in pursuing justice as well as Brian Hancock's relentless fight for the Thompsons' rights. We share rulings like this with you so Florida homeowners understand the lengths insurance companies will go to to avoid paying claims timely and in full, and the lengths we are prepared to go to to ensure they are held accountable to the policy of insurance. If you feel an insurance company is giving you the run-around and trying to avoid its duty to pay your claim, don't hesitate to contact our experienced insurance attorneys for help. We never require any fee, cost, or obligation to simply review your insurance claim and make sure you understand your rights. At TWWH, we know insurance companies have enough attorneys fighting for them. That's why we're here to fight for you.