In both the criminal and civil justice systems, the term “attorney-client privilege” refers to the notion that when a client consults with his or her attorney about a pending case, the content of those discussions will not be subject to public dissemination.

Recently, a plaintiff in a bad faith insurance claim sought exception to this rule. He asserted that because of the unique circumstances of the case, he stood in the shoes of a defendant in a previous case, and therefore was entitled to information that otherwise would have been covered under attorney-client privilege. While a trial court had granted this request, it was recently reversed by Florida’s Fifth District Court of Appeal in Boozer v. Stalley.

carcrash2-300x199Our Lehigh Acres car accident lawyers recognize this case could have an impact on limiting plaintiff discovery in future bad-faith insurance claims, though a question certified to the Florida Supreme Court could decide that fact more definitively.

This case unfolded several years ago when a young man was seriously injured in a crash involving the original defendant, last name Boozer. For her liability in the crash, Boozer was covered by at least two auto insurance policies, each issued by different branches of Allstate. Collectively, those two policies provided $1.1 million in bodily injury coverage.

A representative for the injured man filed a lawsuit against the at-fault driver. During litigation, Allstate, per the terms of the policy, hired an attorney to represent her. The jury returned an award of $11.1 million. This award was not appealed. However, the insurance company paid only the policy limit of $1.1 million, leaving unsatisfied the remaining portion of the judgment.

After numerous attempts to press the insurer to pay the rest, the plaintiff filed an action for bad faith.

In insurance law, bad faith action by an insurer is when the company violates its duty to act in good faith and in fair dealing with persons they insure or are required to compensate. Insurance companies are required to pay claims properly and promptly, and when they do not, additional legal action may be necessary. In this bad faith action, the plaintiff sought to depose the attorney hired by the insurer to represent the original defendant. His lawyer also subpoenaed the original files in the underlying case.

The attorney and the original defendant sought a protective order, requesting limitations on both the deposition and release of documents to prevent any forced disclosure of information that would fall under attorney-client privilege. The trial court denied the motion, as well as the request to stay the deposition pending a review of the order by appellate courts.

During deposition, the lawyer refused to testify to anything specific regarding his communication with the defendant.

An appeal followed. Plaintiff argued long-standing Florida precedent allowed in the context of a third-party bad faith action for him to stand in the shoes of the original defendant for the purpose of obtaining discovery materials that would have been available  – including any that would be shielded under attorney-client privilege. The appellate court reversed, although certified a question to the state supreme court on the matter.

Previous case law has held that in bad faith insurance lawsuits for failure to settle within policy limits, all materials in the company’s claim file up to the judgment date are attainable, and should be produced when requested during discovery. Further, in Continental Casualty Co. v. Aqua Jet Filer Systems, Inc. in 1993, Florida’s 3rd DCA held that discovery of the claim file and litigation file is discoverable in bad faith claims, even over the objections of insurers regarding attorney-client privilege.

However, the appellate court reasoned, based on other case law, that an individual does not waive or otherwise lose attorney-client privilege just because a third party is authorized to file suit against the person’s insurance company.

For this reason, the court quashed the earlier order compelling deposition and the release of certain documents. However, it certified a question to the Florida Supreme Court, asking whether this was the appropriate choice. The question specifically asks whether decisions made in the 2nd DCA and 4rd DCA  shield communications that are attorney-client privileged in discovery during third-party bad-faith litigation.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Boozer v. Stalley, Sept. 3, 2014, Florida’s Fifth District Court of Appeal

More Blog Entries:

Williams v. GEICO – Auto Insurance Step-Down Provisions Challenged, Sept. 6, 2014, Lehigh Acres Car Accident Lawyer Blog