Counsel for an insurer gambled on an appeal pertaining to a discovery motion to produce documents she alleged were privileged — and it paid off.

By Lisa Willis 

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The midtrial appeal resulted when the plaintiffs filed a motion to compel the insurance company to produce documents that the defendant said was protected as work product. (Credit: nito/Adobe Stock)

In a rare occurrence, midtrial, counsel for an insurance company gambled on an appeal pertaining to a discovery motion to produce documents she alleged were privileged—and the gamble paid off.

Florida’s Fourth District Court of Appeal Wednesday sided with Family Security Insurance Co., reversing a trial court’s order that compelled the insurer to produce documents from its claims file.

The company defeated a petition by Martin County residents Joshua and Claudia Stein in a dispute over $75,000 and $100,000 in property damage from strong winds in 2021.

Family Security, a multiline carrier authorized to issue policies in Florida, denied the claim, prompting the Steins to sue for breach of contract.

Is it confidential?

The midtrial appeal resulted when the plaintiffs filed a motion to compel the insurance company to produce documents that the defendant said was protected as work product.

The trial court granted the Steins’ motion, ordering the Insurer to produce the field adjuster’s loss report, nonfinal estimate, and supporting documentation, which the insurer withheld on a claim of privilege.

But Family Security challenged that order, filing a petition to the appeals court.

Fourth DCA Judges Martha C. Warner, Alan O. Forst and Ed Artau all agreed in their appellate ruling that the files being requested constitute protected work product.

“Materials generated during an insurer’s investigation of a claim are generally considered work product,” the judges noted, citing Avatar Prop. & Cas. Ins. v. Flores in their ruling.

In agreeing with the insurance company for a motion to quash the request to produce, the judges wrote, “Here, the field adjuster’s loss report, nonfinal estimate and supporting documentation would appear to fall squarely within this [work product] category.”

“In an action for breach of contract where the issue of coverage is in dispute, compelling production of claims file materials without the opposing party proving the need for the materials and inability to obtain the substantial equivalent without undue hardship, constitutes a departure from the essential requirements of law resulting in irreparable harm,” they concluded.

The panel also disagreed with the Steins’ argument that the insurer waived its work-product privilege “by putting its pre-suit investigation at issue in its answer when it alleged certain causes of the damage to the home, which would have been part of its investigation. We disagree.”

Click here to read the full court opinion


Fort Lauderdale attorney Sara Sandler Cromer of Walton Lantaff Schroeder & Carson, who represented the insurance company, said that had this been a bad-faith action the result would have been different.

“An insured can request these claims file materials in bad-faith actions,” Cromer said. “An insurance company usually is compelled or required to hand over that claims file material.”

She continued, “But because in this instance it was the breach-of-contract action and not a bad-faith action, that claims file material is still protected.”

She said this is a welcome win for her clients, even though the case is still unresolved.

“The Fourth [DCA] addressed one of those arguments in that order at the very end in terms of the defenses raised, [and] it’s nice to get some law, more clarity on that particular issue,” Cromer said. ”I won’t lie to you, it’s always great to get an order in your favor.”

Opposing counsel in the appeal, Ken Christopher Bryant of Saka Bryant, declined to comment.

The case will now continue in Martin County Circuit Court, where Judge Elizabeth A. Metzger has replaced retired Judge Gary L. Sweet.