Defense Law Firm and Insurers’ Mandated Disclosure of their Relationships with Chosen Litigation Experts Still in Flux

Sep 30, 2019


Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.


Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.


Defense Law Firm and Insurers’ Mandated Disclosure of their Relationships with Chosen Litigation Experts Still in Flux

In an automobile negligence case, the Third District court held a plaintiff is entitled to discover information about the financial and professional relationships between the defendant’s expert witnesses, the law firm and the insurer—referred to as “Boecher discovery”. Although the discovery was directed to the defendant, the information sought pertained to non-parties (the expert, the lawyer and the insurer). The defendant petitioned the appellate court for relief but the court denied the petition holding the trial court’s ruling did not depart from the law. However, the court cited to numerous opinions of appellate districts throughout the state certifying the issue of whether a defense firm is required to disclose its financial relationships with litigation experts as a matter of great public importance. Angeles-Delgado v. Benitez, 3d DCA (Sept. 11, 2019)


  • The defendant unsuccessfully argued that plaintiff’ counsel are exempt from similar discovery under attorney-client privilege when a plaintiff’s lawyer refers the plaintiff to a treating physician. In a similar case, the Fifth District called out this seemingly disparate treatment between plaintiffs and defendants.
  • The Florida Supreme Court has accepted review of this issue and a definitive direction is expected soon.

Underwriting and Claim File Materials are Not Discoverable in First-Party Property Dispute

The Fourth District quashed a trial court’s discovery order compelling a homeowner insurer to turn over documents in its underwriting and claim files holding the discovery is “protected work product or irrelevant, or both.” The trial court ordered the insurer produce documents created until the time the claim was denied, which seemingly focused on when litigation was anticipated. The appellate court expressly rejected this analysis and held the requests were “facially improper in their entirety” since discovery related to the claims file or to the insurer’s business policies or practices was not discoverable until the obligation to provide coverage has been determined. Homeowners Choice Prop. & Cas. Ins. Co. v. Mahady, 4th DCA (Aug. 21, 2019)


  • The court implicitly acknowledged a privilege log was not required since the discovery is improper on its face.
  •  When an insurer “anticipates litigation” is not a determining factor in the analysis.