Thursday, November 10, 2011

Privilege In Bad Faith Claim Against Insurer

Answering a question certified from the Fourth District Court of Appeals, the Florida Supreme Court has held that the attorney-client privilege prevents discovery of privileged communications between an insurer-defendant and its counsel when an insured party brings a claim of bad faith against the insurer. The court had previously held that the work product doctrine did not preclude discovery in such actions.

The court further held the privilege may not apply when the insurer retains counsel to both investigate the underlying claim and render legal advice:

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 [the prior decision] and did not involve the rendering of legal advice, then that material is discoverable.

(Mike Frisch)

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