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Homeowners Choice Property and Casualty Insurance Company, Inc. v. Avila

Florida Court of Appeals, Third District

April 25, 2018

Homeowners Choice Property and Casualty Insurance Company, Inc., Petitioner,
v.
Raul Avila and Doxanne Avila, Respondents.

         Not final until disposition of timely filed motion for rehearing.

          A Writ of Certiorari to the Circuit Court for Miami-Dade County, No. 15-20238 Antonio Arzola, Judge.

          Cole, Scott & Kissane, P.A., and Kathryn L. Ender and Therese A. Savona, for petitioner.

          David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); Perry & Neblett, P.A., and David A. Neblett, James M. Mahaffey III and John A. Wynn, for respondents.

          Before SALTER, EMAS and LOGUE, JJ.

          PER CURIAM.

         INTRODUCTION

         Homeowners Choice Property and Casualty Insurance Company ("Homeowners Choice") seeks certiorari review of the trial court's order requiring Homeowners Choice to produce certain items from its "claim file" in the underlying coverage dispute. Because we are bound by our existing precedent, including Castle Key Ins. Co. v. Benitez, 124 So.3d 379 (Fla. 3d DCA 2013), we grant the petition and quash the order under review.

         FACTS

         The underlying dispute arises out of the Avilas' insurance claim for damage caused to their property. The Avilas' homeowner's insurer, Homeowners Choice, made some initial payments following the Avilas' submission of their claim. However, on June 9, 2015, the Avilas' public adjuster sent a letter to Homeowners Choice, contesting the adequacy of the payments made. Homeowners Choice reopened the claim and made an additional payment, which the Avilas allege was still inadequate to cover the damage caused to their property.

         Thereafter, the Avilas sued for breach of contract, in addition to alleged statutory violations.[1] After the complaint was filed, the Avilas served a request for production on Homeowners Choice, seeking, inter alia, "[a]ny documents relating to the claim file, " "[a]ll statements obtained by you, your attorneys or investigators, regarding any aspect of the subject property and/or subject claim, of Plaintiffs or Defendant, its employees, agents or servants, recorded oral or written . . ., " "[a]ny documents relating to evaluations of the loss, " "[a]ny documents relating to any issues of insurance coverage, " "[a] copy of all documents that contain or relate to any conclusions of the Defendant's employees, adjusters or agents that did any work or rendered any services for this claim, " "[a]ny documents which would reflect the date litigation was anticipated for the subject claim, " and "[a]ll claim documents prior to the date litigation was anticipated for the subject claim." In response, Homeowners Choice produced several of the requested items, but also objected to a number of the requests for production, asserting those items were protected by work product privilege and/or a "claims file privilege."

         Homeowners Choice contemporaneously filed a privilege log, and the trial court conducted an in camera inspection of the disputed items. Despite argument by Homeowners Choice that many of the documents in its claim file were privileged, the trial court ordered some of the documents[2] be produced, finding that they were not protected by either the work product privilege or a "claims file privilege." This petition followed.

         ANALYSIS

         In Nationwide Ins. Co. of Fla. v. Demmo, 57 So.3d 982 (Fla. 2d DCA 2011), the Second District considered a case with virtually identical underlying facts. Demmo filed an insurance claim, in 2008, with her insurer, Nationwide, for damage to her home caused by a sinkhole. Id. at 983. Nationwide approved and paid that initial claim. Id. On May 4, 2009, Demmo filed a second claim for water intrusion ...


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