It is not breaking news that many insurance companies monetarily reward their claims department personnel for lowering claim payouts. Thankfully, most courts understand that this is an unacceptable business practice; so, it is not necessarily rare for courts to allow policyholders to discover information pertaining to bonus or incentive plans that insurance companies have in place for their “yes” men and women (adjusters/examiners). That said, however, it is still worthwhile to remind everyone of this golden discovery nugget and to broadcast recent decisions on the subject.

Continue Reading Carrier Bonus / Incentive Plans: Dynamite Discovery Decisions, Part 20

This blog is an extension of my September 27, 2013, blog. The focus of my earlier blog was a Florida federal court decision, whereas the focus of this blog is a Florida state court decision. The topic is whether or not certain aspects of a carrier’s claim file can be discovered during the contractual dispute. Although the Florida state court viewpoint on this topic is more conservative than the Florida federal court viewpoint, the answer, in my opinion, is still “yes” in federal and state court.

Continue Reading Contractual and Extra-Contractual Discovery Overlap (continued): Dynamite Discovery Decisions, Part 18

Let’s say you are immersed in bad faith litigation and the damages you seek include punitive damages – what kind of punishment-related discovery are you going to want?1 Well, some obvious starting points would be discovery pertaining to other claims involving similarly-situated insureds, the insurer’s net worth, and the bonus/incentive program(s) that the insurer has in place to reward personnel for lowering claim payouts. But do you get to have at that kind of discovery by simply including the phrase “punitive damages” in the WHEREFORE clause of your bad faith complaint? Most Florida courts these days will require you to first clear the hurdles set forth in Section 768.72 of the Florida Statutes; and proffer evidence supportive of your bad faith punitive damage claim before allowing you to conduct punishment-related discovery. This post highlights a decision that, in my opinion, got the punitive damage proffer analysis right – the Royal Marco decision out of the Middle District of Florida.2

Continue Reading Punitive Damage Proffers and Discovery: Dynamite Discovery Decisions, Part 17

This blog is shortly and sweetly aimed at making sure policyholder advocates do not lose sight of the contractual discovery forest for the “extra-contractual discovery” trees. The substance of this post is not breaking news … rather, this post is a friendly reminder to policyholder advocates that extra-contractual (i.e., bad faith) discovery may be available in contractual disputes.

Continue Reading Contractual and Extra-Contractual Discovery Overlap: Dynamite Discovery Decisions, Part 15

In my August 30, 2013, post, I discussed the “trade secret” (a/k/a/ confidential) discovery objection that insurance companies all-too-often raise. This post is somewhat related, pertaining to Allstate’s post-trial efforts to seal discovery it produced pre-trial under a trade secret/confidential protective order and was introduced by the insured at trial without objection from Allstate.

Continue Reading Sealing Court Files: Dynamite Discovery Decisions, Part 14

In Paskoff v. Avatar Property & Casualty Insurance Company,1 a matter handled by my Merlin Law Group colleague, Shaun Marker, Avatar’s CEO visited the insured property and conversed with Ms. Paskoff about her loss. In subsequent litigation, Mr. Marker naturally wished to depose Avatar’s CEO regarding the CEO’s property visit and interactions with Ms. Paskoff. Mr. Marker filed a motion to compel the deposition of the CEO.

Continue Reading Deposing Insurer CEOs: Dynamite Discovery Decisions, Part 13

Insurers often object to providing discovery that is purportedly available in the public domain. This objection is legally untenable. In Simon v. ProNational Insurance Company,1 the United States Southern District of Florida Court overruled Pronational Insurance Company’s “public record” objection, which had been raised in response to Simon’s request for Civil Remedy Notices filed against Pronational by similarly-situated insureds. In overruling the carrier’s objection, the Simon Court recognized/reasoned there is no guarantee documents purportedly available in the public domain are complete or accurate.

Continue Reading Public Domain, Reinsurance, and Personnel: Dynamite Discovery Decisions, Part 12