The Mythical Claim File Privilege

If you are involved in first-party property insurance disputes in Florida you have undoubtedly heard of the “claim file privilege.” Insurance carriers and their legal representatives continue to assert this “claim file privilege” in defiance of Florida courts holding that no such privilege exists.¹

Most recently, Florida’s Fifth District Court of Appeal again found the insurance carrier’s arguments for a “claim file privilege” unavailing. In Avatar Property & Casualty Insurance Company v. Simmons,² Avatar sought certiorari relief from an order compelling production of photographs in its claim and underwriting files.

[T]he basis for Avatar’s objection to the request at issue was work product privilege. But despite prodding from the trial court, and after multiple opportunities to do so, Avatar never attempted to demonstrate that the photographs at issue were prepared in anticipation of litigation….Instead, Avatar only asserted a categorical ‘claims file’ or ‘underwriting file’ privilege.

(Emphasis added).

The appellate court in Simmons rejected the mythical “claims file privilege,” and denied Avatar’s petition for certiorari relief. The appellate court recited the requirements to assert a valid work product privilege, which places the burden on the objecting party “to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insurer.”³

While the materials at issue in Simmons were photographs, the reasoning can and should be extended to a number of documents contained in the “claim file.” Why should insurance carriers withhold claim log notes created before any “event” giving rise to the anticipation of litigation simply because they are contained in the “claim file?” Similarly, why should they be permitted to withhold the notice of loss or the independent adjuster/field adjuster’s initial estimate, photographs, report, and communications created before the insurer could reasonably have anticipated litigation?

In most circumstances, the insurance carrier’s routine investigation of the loss is performed well before any event that could be said to give rise to the anticipation of litigation. Absent a showing that they were prepared in anticipation of litigation, these documents do not fall under the work-product privilege and are discoverable whether or not they are contained in a “claim file.”
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¹ See Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 248 So.3d 180, 184 (Fla. 3d DCA 2018) (finding there is no “claims file privilege”); Bankers Sec. Ins. Co. v. Symons, 889 So. 2d 93, 96 (Fla. 5th DCA 2004).
² Avatar Prop. & Cas. Ins. Co. v. Simmons, No. 5D20-304, 2020 WL 3115957 (Fla. 5th DCA June 12, 2020).
³ Simmons, citing Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905 (Fla. App. 2004) .