On September 5, 2014, the Fifth District Court of Appeal issued its en banc decision in Boozer v. Stalley, 146 So. 3d 139 (Fla. 5th DCA 2014), holding that in a third-party bad faith action, the attorney-client privilege precludes discovery of confidential communications between the insured and counsel retained by the insurer to represent the insured, receding from its holding in Dunn v. National Security Fire & Casualty Co., 631 So. 2d 1103 (Fla. 5th DCA 1993). The court also certified the following question to the Florida Supreme Court:
DO THE DECISIONS IN ALLSTATE INDEMNITY CO. V. RUIZ, 899 So. 2d 1121 (Fla. 2005), AND GENOVESE V. PROVIDENT LIFE & ACCIDENT INSURANCE CO., 74 So. 3d 1064 (Fla. 2011), SHIELD ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS FROM DISCOVERY IN THIRD-PARTY BAD FAITH LITIGATION?
Benjamin Hintz was injured in a motor vehicle accident involving Emily Boozer, who was covered under two Allstate insurance policies. Hintz’s guardian, Stalley, sued Boozer and Allstate and recovered a judgment against Boozer in excess of the Allstate policy limits. Allstate paid its policy limits, leaving the remainder of the judgment unsatisfied. The guardian then filed a bad faith action against Allstate and sought to depose Boozer’s attorney and subpoena his files. Boozer moved for a protective order, asserting the attorney-client privilege. The trial court denied the motion.
Boozer’s attorney appeared for his scheduled deposition and answered general questions, but refused to answer any questions or produce any documents related to his representation of Boozer. The deposition was adjourned and Boozer filed a petition for writ of certiorari, arguing that the trial court improperly denied her motion for protective order. Stalley argued that in the context of third-party bad faith litigation, he stood in Boozer’s shoes and could obtain discovery of any materials that would be available to her, including those that would otherwise be protected by the attorney-client privilege.
The Fifth District’s Analysis
The court began its analysis by explaining that the issue before it was first considered in Boston Old Colony Insurance Co. v. Gutierrez, 325 So. 2d 416 (Fla. 3d DCA 1976), where the Third District held that a defense attorney retained by an insurer could be deposed in a subsequent bad faith case and had to produce his files: “As a third-party beneficiary of the insurance policy, Gutierrez stands in the same posture as that of Brown, the insured. Just as Brown would be entitled to discovery, including deposition and production of files by the attorneys, since both he (Brown) and Boston Old Colony were their clients, Gutierrez has the same right of discovery in furtherance of the preparation of his case.”
In Dunn, the Fifth District considered a similar issue, when the plaintiff in a third-party bad faith claim sought the insurer’s claim and litigation file. The court rejected the insurer’s claim of work product and attorney-client privilege, stating, “In bad faith suits against insurance companies for failure to settle within the policy limits, all materials in the insurance company’s claim file up to the date the judgment in the underlying suit are obtainable, and should be produced when sought by discovery.”
The court noted that these decisions and others supported Stalley’s argument below. However, the court noted that several more recent decisions required it to re-think Dunn.
For example, in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), the Florida Supreme Court held that in first-party bad faith actions pursuant to Section 624.155, Florida Statutes, work product materials were discoverable. In Westbend Mutual Insurance Co. v. Higgins, 9 So. 3d 655 (Fla. 5th DCA 2009), the Fifth District held that in the context of a first-party bad faith proceeding, Ruiz did not extend to materials protected by the attorney-client privilege stating, “Nothing in Ruiz suggests that the attorney-client privilege available to any contracting party, including insurers, somehow evaporates uniquely for insureds upon the filing of a bad faith claim.” In Genovese v. Provident Life & Accident Insurance Co., 74 So. 3d 1064 (Fla. 2011), the Florida Supreme Court determined that the attorney-client communications were not discoverable a first-party bad faith case. In Progressive v. Scoma, 975 So. 2d 461 (Fla. 2d DCA 2007), the Second District held that communications between the insurer and its counsel were protected by the attorney-client privilege in a third-party bad faith action. Lastly, in Maharaj v. Geico Casualty Co., 289 F.R.D. 666 (S.D. Fla. 2013), the court stated, “The court is cognizant of the fact that the express language of Genovese limits its holding to the first-party bad faith context, but the court sees no reason why the legal analysis utilized in Genovese regarding the application of the attorney-client privilege to the insurer’s claims file would not be equally relevant in a third-party bad faith case.”
The court found that Maharaj is a logical extension of the Florida Supreme Court’s holdings in Ruiz and Genovese and the Second DCA‘s holding in Scoma. Thus, it stated that it should adopt the holdings of Scoma and Maharaj and recede from Dunn to the extent it allows the unqualified discovery of attorney-client protected material. “The fact that Stalley may stand in Boozer’s shoes, or have an independent right to bring a bad faith action under Section 627.155, does not mean that Boozer gave up her statutory attorney-client privilege . . . .”
The court quashed the trial court order denying the motion for protective order and certified the above-referenced questions to the Florida Supreme Court.