Claims and Bad Faith Law Blog

Ask Not Where the Poor Will Receive Treatment, ...

...  Ask How You Treat the Poor:  Medicaid Coverage on the Drop List.

   When Medicaid no longer exists because it is "Too Expensive" to provide for the Poor, how long will it be before it becomes "Too Expensive" to require Emergency Room Treatment for the Poor?

    If Emergency Treatment remains available to the Poor, and Medicaid is dismantled, the costs will be passed on by Health Care Providers like the Emergency Room Services of Hospitals.  To whom or what will these costs be "passed on"?  To you and your Insurance Company.  See Robert Pear, "As Number of Medicaid Patients Goes Up, Their Benefits Are About to Drop" p. A27, col. 1 (New York Times Nat'l ed., Thursday, June 16, 2011).

    Politicians who say that they would prefer Medicaid assistance to the alternative system of passing the costs on to you, reportedly stand by while Medicaid is dismantled because resistance is "'fairly futile.'"  Id., quoting a person identified as the director of the Washington State Governor's office in Washington, D.C.

    The dismantling of Medicaid will affect you for sure.   1 out of every 5 "Americans" receive Health Insurance provided through Medicaid "at some point" during a calendar year.  Id.  "'They don't have money to do lobbying.'"  Senator John D. Rockefeller, IV, quoted in id.  See also Denise Grady, "Children on Medicaid Shown to Wait Longer for Care" p. A27, col. 1 (New York Times Nat'l ed., Thursday, June 16, 2011).

   And so, when Medicaid is cut down and the winds of costs whistle by as they are being passed on to you, remember this time.  Think then of the priorities selected now.  Remember what you said or did while other people were openly selected for, shall we say, 'emergency treatment'.  And that it all became so much more expensive for you compared to the way it has been for you and for your family and for your clients for 45, 50 years.  And remember that no matter how much more you pay in the future as a result, the Poor are paying much, much more.

 

   And that the top 0.1 % are paying less.

 

Please Read The Disclaimer.

COMPUTER MODELS COMMISSIONED FOR HOMEOWNER INSURANCE PREMIUM HIKES.

 

   "But the catastrophe models at the core of just about every aspect of hurricane insurance, from rates to regulation, are flawed.

   Their creators warn the programs are imprecise, more useful for spitting out a range of possibilities than the single numbers insurance companies commonly select and cite as fact.

   But even the ranges are suspect....

   A Herald-Tribune review of regulatory filings and interviews with experts found ... [s]everal companies seeking rate increases [which] used models that left out data about safety features on the homes they insure -- factors that would have reduced their expected losses and undermined their request for higher premiums."

Paige St. John, "Insurers' Computer Models Deeply Flawed" (Sarasota Herald-Tribune Online, Monday, November 15, 2010).

     Some but by no means all Homeowner's Insurance Companies are seeking Premium Rate Increases based in part on selective Computer Models.

     These Computer Models are input by organizations which sell them to Homeowner's Insurance Companies for use in making Premium Rate Requests.

     Computer Models recently submitted to the Florida Office of Insurance Regulation with Homeowner's Rate Hike Requests reportedly predict continuous Hurricane Damage in Orlando and West Central Florida.  These are the Computer Models sold to some of the Homeowner's Insurance Companies which are using them as a reason for Rate Increases.  Newspaper reporters noted for their expertise with Insurance issues who have reported on this fact include, e.g., Jeff Harrington, "Five Reasons That Florida Homeowners Insurance is Still Getting More Expensive" (St. Petersburg Times Online, May 31, 2011); Julie Patel, "Home Insurers Request Rate Hikes" ("House Keys" Blog on Sun-Sentinel.com, posted Monday, June 13, 2011); Paige St. John, "Property Insurers Seeking Major Rate Increases" (Sarasota Herald-Tribune Online, Monday, June 13, 2011).

     The Computer Models at issue are not based on historical fact.  If they were, they would reflect the actual experience in Central Florida with Hurricane Damage:  3 in 1 year (2004) and none other within living memory before or since.

     Instead, this computer output is based on input of speculation and opinion.  The opinion seems to be that the "Perfect Storm" could hit Orlando and if it did, the resulting Damage would be great, so before any such things happen let the Homeowner's Insurance Companies which paid for these selective Hurricane Computer Models, charge higher Premiums.

     Hearings are reportedly required by Florida Law if Rates are based in part on unauthorized Computer Models.  If Hurricane Computer Models are not authorized, then Florida Law provides Floridians with certain protections.  With respect to any unauthorized Hurricane Computer Model filed as a part of any pending Rate Request, the author has provided the following letter concerning the applicable requirements of Florida Law to the Florida Office of Insurance Regulation (Department of Insurance), below.

 Please Read The Disclaimer.

 

Determining Coverage by Computer: Risking More Than Wind, Water Losses.

   Hurricanes contain Wind and carry Water (or the other way around, depending on how you say it).  Determining Hurricane Losses attributable to Wind as distinct from Hurricane Losses caused by Water can be a difficult task.

   Computer Models are now advertised to solve the problem for Insurance Companies.  (Yet again.)  According to testimony on a bill to extend and change the National Flood Insurance Program, Computer Models not only can be used to, well, "model a storm" but "[i]n addition, statistical models can be used to predict the loss."  Lydia Mulvaney of McClatchy Newspapers, "Models Can Determine Wind and Water Damage, Panel Told" posted in political blog on MiamiHerald.com on Thursday, June 23, 2011.

   There is at least one major drawback to that:  Exposure to Bad Faith, extracontractual Damages without limit.

   Although the Courts have held that it is not Bad Faith in and of itself to use a Computer Model as a tool in evaluating Covered Loss, see, e.g., Henry v. Allstate Insurance Co., 2011 WL 2287817 (E.D. La. Case No. 07-1738 August 8, 2007)(PACER NOT AVAILABLE; authorized password required to access Westlaw), the Courts have also held that it is Bad Faith to turn the responsibility for evaluating a Covered Loss over to a Computer Model.  See also Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" §11:22, "Computer Models and Catastrophe Claim Coverage" (Third Edition West Publishing Co. 2011).

   I was not aware there is such a problem in the process of actually evaluating Hurricane Losses.  There does not seem to be one -- at least before legislation was introduced and Computer Models are being advertised as replacing Insurance Industry Experience in evaluating Covered Losses.

Please Read The Disclaimer.

California Court Rules: Next Discovery Round Bad Faith Deposition.

      It is fairly common when a case presents mixed claims for relief or causes of action, that a Court will limit discovery initially to one of the claims which the Court views as a predicate for the other claims including claims for Bad Faith.  If the predicate claim survives the Defendant's Motion for Summary Judgment, then discovery will ordinarily proceed on the remaining claims which depend on the viability of the predicate claim.

   Such was the case in Download Kelly v. Provident Life and Accident Insurance Co. (S.D. Cal. Case No. 04cv807, Order of USMJ 06.20.11) PUBLIC ACCESS, also published as 2011 WL 2448276 (S.D. Cal. June 20, 2011)(authorized password required to access Westlaw).  Mr. Kelly presented mixed claims including for Rescission of a previous settlement agreement, and for alleged Bad Faith.  The Defendant was "his own-occupation disability insurance" Company.  The Federal District Judge initially limited discovery in that case to Mr. Kelly's Rescission Claim.  The Rescission Claim survived the Defendant's Motion for Summary Judgment.  Accordingly, Mr. Kelly proceeded to take discovery on his remaining claims including for alleged Bad Faith.

 

   The Defendant objected that discovery had already been taken.  In particular, the Defendant objected to another Rule 30(b)(6) Deposition of its corporate representative(s).  The parties presented a joint motion to resolve the discovery dispute.

   The Magistrate Judge ruled that the corporate representative Deposition should proceed just as the Plaintiff noticed it under Rule 30(b)(6):

   Plaintiff's Rule 30(b)(6) Notice of Deposition contains 14 potential deposition topics. (Doc. No. 192.) The topics are described with reasonable particularity and are narrowly tailored to the relevant issues and time periods. The topics include requests for a witness or witnesses that can testify about: (1) “records retention policies, practices, and procedures that were in place from 1991–1999;” (2) documents concerning Provident's changes to it claims handling policies, practices, and procedures that occurred between 1991 and 1999; (3) documents concerning claim improvement initiatives between 1995 and 1999; (4) documents concerning “institutionalizing the scrub,” which were drafted between 1993 and 1999 ^FN1; (5) documents concerning the “lists of claimants targeted for ‘intensive efforts' for ‘successful resolution of the claim’ ”; (6) documents concerning lists of “problem claims”; (7) documents concerning “targeting of ‘subjective claims' ”; (8) documents concerning ‘targets or goals for claims termination’; (9) documents concerning ‘targets or goals for claims resolution’; (10) documents concerning financial targets for claims handling; (11) documents concerning reserve targets for claims handling; (12) documents concerning ‘net termination ratios'; (13) documents concerning policies, practices, and procedures that were in effect from 1986 through 1999 that relate to Provident informing insureds that it is reserving the right to deny coverage; and (14) documents concerning Provident's policies, practices, and procedures in effect from 1986 through 1999 that relate to informing insureds that it is reserving the right to seek reimbursement of benefits previously paid. (Doc. No. 192.)

 

FN1. Deposition topic nos. 5–12 contain the same limiting time period as topic no. 4: documents drafted between 1993 and 1999.

 

Kelly v. Provident Life & Accident Insurance Co., 2011 WL 2448276 at *1 & n.1.

   Where a case presents mixed claims and the Court limits discovery initially to only one of those claims, all parties-clients of all attorneys of record in the case are best prepared for further discovery on the remaining claims when they are aware that one claim, a predicate claim in the eyes of the Court, has passed the test of viability in the judgment of the Court.

 

Please Read The Disclaimer.

California Court 'Restores' ROYAL GLOBE.

   California has a statute that prohibits insurance companies from funneling insureds to pre-selected automobile mechanics for car repairs after an accident:

   Insurance Code section 758.5 (section 758.5) prohibits an insurer from either requiring an insured's automobile be repaired by a specific automobile repair dealer or suggesting or recommending that a specific automobile repair dealer be used unless the insured is informed in writing of his or her right to select another repair dealer.

Download Hughes v. Progressive Direct Insurance Co. (Cal. 2d DCA, Div. 7, Case No. B224990, Opinion Filed June 15, 2011) PUBLIC ACCESS, also published as 2010 WL 2348325 *1 (Cal. 2d DCA, Div. 7, June 15, 2011)(authorized password required to access Westlaw).

   The California District Court of Appeal has just ruled in that case that Insurance Code Section 758.5 confers an implied cause of action.  Id.

   The California District Court of Appeal followed the ruling of the California Supreme Court in Royal Globe Insurance Co. v. Superior Ct., 23 Cal. 3d 880, 592 P.2d 329, 153 Cal. Rptr. 842 (1979).  The California Supreme Court overruled Royal Globe in Moradi-Shalal v. Fireman's Fund Insurance Cos., 46 Cal. 3d 287, 758 P.2d 58, 250 Cal. Rptr. 116 (1988).  In the course of overruling Royal Globe, the Supreme Court in Moradi-Shalal rejected the reasoning of inferring a cause of action under perhaps more explicit statutory language than can be found in Section 758.5.

   The shelf life of Hughes v. Progressive Direct Insurance Co. may be short.

   Time will tell.

Please Read The Disclaimer.

  

Prayers for Pamela.

     This is an UPDATE on my post here on May 26, 2011, "Praying for Florida's New Attorney General".

 "We prayed for her, that her eyes would be opened and her heart softened to the reality of what is happening in our state.  Ordinary Floridians are relying on her to stand for them and not Wall Street."  Rev. Errol Thompson, Baptist Pastor in Orlando, Florida and Chair, PICO United Florida,  "Guest Columnist / Troubled Homeowners Need Bondi's Support," p. A21, col. 1 (Orlando Sentinel, Friday, June 17, 2011).

 

   When money lenders started talking about moral hazard, they opened the door for higher authorities to speak.  Ministers are now speaking out about moral hazard. 

   Ministers see a moral hazard peril in the love of money.  Money lenders have not been heard to refute that or to attack the Ministers, yet.  For now, money lenders seem content to have their positions advanced  by "public officials".

     Pamela Bondi, Florida's Attorney General, has for example championed their position in settlement negotiations between the 50 State Attorneys General and Mortgage Servicers and Banks as a result of 'defects' in Foreclosure proceedings.  Florida's Attorney General has publicly renounced taking any position in the negotiations with the Mortgage Servicers and Banks that the mortgage lenders even consider reducing the debts owed by homeowners in Florida.  Ms. Bondi is of the view that it would unleash the whirlwind of a moral hazard.

   The response of a group led by Ministers is to pray for her.  Unceasingly and often.  See Rev. Errol Thompson, "Guest Columnist / Troubled Homeowners Need Bondi's Support" p. A21, col. 1 (Orlando Sentinel, Friday, June 17, 2011).

   Today is a good day to pray.

    Please Read The Disclaimer.

Right to Trial by Jury for Bad Faith in Settlement.

   Almost forty years ago, the Supreme Court of New Jersey recognized a cause of action for Bad Faith in Settlement by Liability Insurers in Rova Farms Resort, Inc. v. Insurance Co. of America, 65 N.J. 474, 323 A.2d 495 (1974).

   Two days ago as this post is written, the Supreme Court of New Jersey unanimously held that the cause of action is in Contract and carries with it the right to a Trial by Jury: 

We conclude that a Rova Farms claim that an insurer in bad faith failed to settle a claim within the policy limits, thereby in fact exposing its insured to liability for any excess, represents a traditional contract claim that the insurer breached the implied covenant of good faith and fair dealing and to which the right to trial by jury attaches.

Download Wood v. New Jersey Manufacturers Insurance Co. (New Jersey Opinion Filed June 14, 2011. CLERKS SYLLABUS.SYNOPSIS OF COURTS OPINION) PUBLIC ACCESS, also published as 2011 WL 2314954 *1 (N.J. June 14, 2011).

The general acceptance of the Rova Farms precedent in this country, not just in New Jersey, will likely bring general acceptance of the holding in Wood v. New Jersey Manufacturers Insurance too.

Please Read The Disclaimer.

Assume Good Faith Cap on Profit Intake From Health Insurance.

   Blue Shield of California has announced a cap on "earning," the measure of which is not clear, and a "refund [of] the bulk of any excess income to its policyholders."  Reed Abelson, "Insurer Says it Will Cap Profit Level" p. B1, col. 5 (New York Times Nat'l ed., Wed., June 8, 2011).

   Perhaps other Health Insurance Companies will follow the lead.  At this moment, assume this cap and announced refund are in Good Faith.  They would alone be good news.  More than that would be a bonus.

Please Read The Disclaimer.

Foreclosure Lawsuits Problems Attempt Overcoming Courts: No. 1, With Solutions.

This is the second in an occasional series.

   One problem with the attempt to overwhelm the Court System with Foreclosure Lawsuits, thus laying the groundwork for "reform" by making Foreclosures easier for Foreclosure Plaintiffs to sue, lies with the presentation of Affidavits and Testimony and other unsupported Evidence.  See the previous posts for several years in those categories as applicable, and in the Category of "Foreclosures".

   In presenting unsupported Affidavits, Testimony and other Evidence, Foreclosure Plaintiffs often present Affidavits or Testimony which does not rest on personal knowledge.  Further, some Witnesses or Exhibits purport to offer "summaries" of other people's calculations or work.   Unless the Homeowners are represented by counsel when they are sued as Defendants, there is no-one to object under the most-followed, current Court System model.

   This system is well known to Foreclosure Plaintiffs.  The response of Courts and Legislatures to the overwhelming number of filed Foreclosure Lawsuits has often been to engage in "reforms" suggested by Foreclosure Plaintiffs which will "speed up" the process of their Foreclosures.

   A major problem with these "reforms" is when they require the acceptance in a Court proceeding, a lawsuit, of testimony and evidence which has not previously been found acceptable.  I.e., Affidavits and Testimony and other unsupported Evidence.

   Here are three possible solutions to the problems.  These possibilities are offered here in the context of possible changes to Court and Bar Rules.  Perhaps the involvement of Legislatures and statutes may be required in some jurisdictions.  Further, the language in these proposals addresses the only problem before the Courts in Foreclosure Lawsuits at this time, which is the presentation by Plaintiffs of unsupported Evidence in those cases.  If other problems arise, the language can be changed to address additional problems which may develop in the future.

   As noted, thes following proposals address a problem currently posed by Foreclosure Lawsuits, which is the presentation of unsupported Evidence by or on behalf of Plaintiffs particularly against Defendants who have no Legal Counsel. 

   1.  Summary Judgment Rule and/or Rules regarding Affidavits filed in Court proceedings.  Proposal to add to existing Rule(s):

        This provision is applicable to any Foreclosure Lawsuit in which the Plaintiff offers an Affidavit(s) in support of a motion for summary judgment of Foreclosure:

        (a)  In which the Defendant in a Foreclosure Lawsuit is not represented by Counsel, the Court is empowered and authorized to hold Hearings and take Testimony including in person from the signer of any Affidavit(s) submitted by the Plaintiff, for the purpose of determining compliance with these Rules, including but not limited to the purpose of a finding on the issue of whether the Affidavit was made on personal knowledge.

        (b)  In any Foreclosure Lawsuit in which the Court shall determine that the Affidavit(s) have not been made or filed in accordance with these Rules, the Court shall strike the Affidavit(s) from the Court File.  In addition, the Court in any such case upon such a finding may in its discretion also:

          (1)  Strike the pleadings of the Plaintiff.

          (2)  Dismiss the lawsuit.

2.  Appellate Rule.  Proposal:

        In any Appeal from a Judgment of Foreclosure on the ground that the Judgment of Foreclosure is not supported by the Evidence, or is against the manifest weight of the Evidence, review of the Judgment with regard to such ground or grounds shall be de novo [brand new by the reviewing Court on appeal].

 

3.  Pro Bono Bar Rule.  Proposed additions:

  (1)  Include representation of Foreclosure Lawsuit Defendants who do not qualify for Legal Aid.

  (2)  Include representation of Foreclosure Lawsuit Defendants who have qualified for Legal Aid and upon referral and certification by Legal Aid that Legal Aid is unable to handle the representation without the referral.

 

Do you have other solutions?  If so, or if you want to comment upon these proposed Rule changes, please leave a Comment with your thoughts.  Thank you.

Please Read The Disclaimer.

 

       

Frivolous Foreclosure Fraud Lawsuits Threaten to Overcome Court System.

   I plan a series of occasional posts on the Foreclosure Lawsuit Fraud problem which confronts our Court system.  The first in the series appears on Insurance Claims and Issues Web Log today.

   Taking an unusual step, I also plan to alternate the occasional posts on this series between the Insurance Claims and Issues Weblog, and this one.  The effects on Mortgage Insurance are pronounced and trigger the insight offered on Insurance Claims and Issues Weblog in particular.  The business model which requires the filing of an overwhelming number of Foreclosure Lawsuits which will likely increase the Plaintiffs' prospects of prevailing in Foreclosure is a particularly appropriate subject for this Insurance Claims and  Bad Faith Law Blog.

   I intend to summarize how we got to where we are today, take a picture and publish it in words about where we are today, exactly, and what can be done to safeguard the Judicial System of which I have been a part throughout my professional career, and in which I continue my professional life.

Please Read The Disclaimer.

Florida First-Party Insurer Bad Faith: Attorney-Client Privilege.

   The Supreme Court of Florida has done some "receding" from its previous decisions in recent years.  In one case, the "receding" was out loud, express, and explicit.  In the other case, the "receding" was totally obvious and completely silent.

   The Court's express recession came first.  In 1989 in its decision in Kujawa v. Manhattan Nat'l Life Ins. Co., 541 So. 2d 1168, 1169 (Fla. 1989) (first-party bad faith case)(authorized password required to access this case on Westlaw), the Florida Supreme Court wrote in order to affirm certain rules of discovery.   The Florida Supreme Court affirmed application of the Attorney-Client Privilege in qualified first-party bad faith cases, among other discovery rules.

   In 2005, in another first-party bad faith case, the Florida Supreme Court wrote to recede in part from its Kujawa decision and, apparently, from the attorney-client privilege.  In Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)(authorized password required to access this case on Westlaw), Download Allstate Indemnity Co. v. Ruiz (Fla. Opinion Filed April 7, 2005) PUBLIC ACCESS, the Court was faced with a question of work product privilege in a first-party bad faith case.  However, the Court went ahead and also addressed generally the issue of attorney-client privilege in all kinds of Insurer Bad Faith actions including those not before it.

   In Ruiz, the Supreme Court of Florida "conclude[d] that it is necessary to recede from our decision in Kujawa because it has unnecessarily produced the application of artificial and disparate discovery rules to first- and third-party bad faith actions.... There simply is no basis upon which to distinguish between first- and third-party cases with regard to the rationale of the discoverability of the claim file type material."  Allstate Indem. Co. v. Ruiz, 899 So. 2d at 1129.

   According to the Florida Supreme Court in Ruiz, when Florida's Bad Faith Statute, brought forward to Fla. Stat. § 624.155 (2010), was enacted into law, the Florida Legislature eliminated any distinction in Florida between third-party bad faith actions and first-party bad faith actions.  Accordingly, in Ruiz the Florida Supreme Court receded in part from its decision in Kujawa:

   Today, however, we reconsider the wisdom of our decision in Kujawa and a fresh look at such decision convinces us that any distinction between first- and third-party bad faith actions with regard to discovery purposes is unjustified and without support under section 624.155 and creates an overly formalistic distinction between substantively identical claims....  [S]ection 624.155 very clearly provides first-party claimants, upon compliance with statutory requirements, the identical opportunity to pursue bad faith claims against insurers as has been the situation in connection with third-party claims for decades at common law.  The Legislature has clearly chosen to impose on insurance companies a duty to use good faith and fair dealing in processing and litigating the claims of their own insureds as insurers have had in dealing with third-party claims. Thus, there is no basis to apply different discovery rules to the substantively identical causes of action....  We conclude the claims of protection at issue in this case may only be applied consistently with the rationale we have established in identical situations in the third-party context.

 Id.  at 1128. 

   A Federal Court in Florida applied the Ruiz Court's dictum in 2010.  In The Ruiz holding was extended to compel production of other insureds' claims files in Mayfair House Association v. QBE Insurance Corp.,  2010 WL 472827 (S.D. Fla. February 5, 2010))(authorized password required to access this case on Westlaw) Download , Mayfair House Association v. QBE Insurance Corp. (S.D. Fla. Opinion Filed Feb. 5, 2010) PUBLIC ACCESS. The Federal Court held that Ruiz supported compelled production of other insureds' claims file documents.  The Federal case centered on a one-Count claim of statutory Bad Faith alleged under Section 624.155, on account of a denial of windstorm coverage for Hurricane damages.   Parenthetically, the Federal plaintiff included allegations in his claim of first-party bad faith, that the defendant insurance company violated several provisions of Florida's Unfair Claim Settlement Practices Act,  Fla. Stat. § 626.9541(1)(i).  Id. at *2.

   The Federal Court in that case was confronted with a request for production which included “the claim files of other insured condominium associations who also litigated windstorm damage claims against QBE arising out of Hurricane Wilma.”  Id.  The U.S. District Court compelled the production of other insureds' claims file documents in that case, relying largely on the supposed 'elimination' of the attorney-client privilege by the Florida Supreme Court in Ruiz, holding that "the Florida Supreme Court effectively eliminated the attorney client privilege as a discovery shield in bad faith insurance litigation between an insured and its insurance company with respect to all materials generated prior to resolution of the underlying disputed matter.”  Id. at *3.

    Earlier this year, the Florida Supreme Court clarified this area of discovery.  The Court's decision came in yet another "statutory first-party bad faith action," this one involving terminated "disability income" benefits:  Genovese v. Provident Life & Accident Ins. Co., 2011 WL 903988 (Fla. March 17, 2011))(authorized password required to access this case on Westlaw), Download Genovese v. Provident Life & Accident Insurance Co. (Fla. Opinon Filed March 17, 2011) PUBLIC ACCESS:

    Therefore, although we held in Ruiz that attorney work product in first-party bad faith actions was discoverable, this holding does not extend to attorney-client privileged communications.  Consequently, when an injured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action.

    Although we conclude that the attorney-client privilege applies, we recognize that cases may arise where an insurer has hired an attorney to both investigate the claim and render legal advice.  Thus, the materials requested by the opposing party may implicate both the work product doctrine and the attorney-client privilege.  Where a claim of privilege is asserted, the trial court should conduct an in camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege.  If the trial court determines that the investigation performed by the attorney resulted in the preparation of materials that are required to be disclosed pursuant to Ruiz and did not involve the rendering of legal advice, then that material is discoverable.

 Id. at *4.  [Italics by the Supreme Court of Florida.]  This decision was followed immediately by a Florida State intermediate appellate court in another case involving similar discovery issues.  State Farm Fla. Ins. Co. v. Puig, 2011 1008266 *2 - *3 & *2n.1 (Fla. 3d DCA March 23, 2011))(authorized password required to access this case on Westlaw), Download State Farm Florida Insurance Co. v. Puig (Fla. 3d DCA Case No. 3D10.2104, Opinion Filed March 23, 2011)(PUBLIC ACCESS, STATED NOT FINAL).

   Under the apparently now-settled view in Florida Insurance Law, followed by most if not all Courts in Florida, the attorney-client privilege still applies in first-party insurance bad faith lawsuits, just as it applies in other actions in Florida.

 In a perspective including additional research and analysis,  these issues are also the topic of  Dennis J. Wall, "Discovery of Claims File Materials in Bad Faith Cases:  The Florida Experience" 33 Insurance Litigation Reporter 181 (2011), available at no charge under the "Publications" tab on www.dennisjwall.com.

Please Read The Disclaimer.