Florida insurance policyholders have a problem. The problem is the manner that Florida courts protect some information held by insurers. This information often consists of the reports and files the insurance company keeps when a customer files a claim. Most of this is routine, with reports, photos, appraisals, cost estimated and other routine material necessary for handling a claim.

In law, there is what is known as “the work product privilege.” It is designed to protect the workings of attorneys and advice they give or material prepared in anticipation of litigation for their clients from discovery by the other side in litigation. This makes sense. Unfortunately, for Florida residents, this privilege has been expanded in an uneven way by some Florida courts to the point where virtually everything done by the insurance company in relation to a customer and their claim file is “privileged.”

This means the insurance company will turnover little more than the original policy document and communication sent to the policyholder. Of course, this is material the policyholder and their attorney already has in their possession. It prevents the turning over of documents and communications that would show, for instance, that the company was denying a claim for invalid or improper reasons.

In many cases, the information necessary to show a bad faith denial or improper delay in paying a claim are in the exclusive possession of the insurance company. Preventing the release of this information could leave an insured with ultimately no recourse.

Privileged information is supposed to consist of material prepared in anticipation of litigation, but insurers have gamed the system to the point where virtually everything relating to a customer claim is deemed to be “in anticipation of litigation.” This allows them to cover-up incriminating information and this interpretation of privilege law could make it very difficult for policyholders to bring litigation against their insurers regarding denied claims.