Insurance coverage

Decision: discovery of underwriting is not categorically prohibited in cases of insurance coverage

Discovery in Florida insurance actions is often hotly contested. Despite the prevalence of discovery disputes, case law has often failed to provide consistent guidance to state practitioners. Indeed, Florida state and federal court decisions appear to conflict on several aspects of insurance-related discovery, as do the various district appeals courts. For example, compare State Farm Fire & Casualty vs. Valido, 662 So. 2d 1012, 1013 (Fla. 3d DCA App. 1995) (vacation order requiring production of State Farm’s claim records, manuals, guidelines and documents in first party coverage litigation, finding that documents are not relevant to the dispute) and Homeowners Choice Property & Casualty Insurance v. Mahady, 284 So. 3d 582, 583 (Fla. 4th DCA 2019) (vacation order allowing discovery of claim records and underwriting records in coverage dispute because “insurer’s liability for coverage and amount of damages policyholders have not been definitively determined”) with American Home Assurance versus Vreeland, 973 So. 2d 668, 672 (Fla. 2d DCA. 2008) (allowing limited discovery of the underwriting record relevant to whether a party was an insured).

Even courts in the same district have reached seemingly contradictory results in different discovery disputes, particularly regarding the discoverability of the insurer’s underwriting record, underwriting manuals or underwriting guidelines. Compare Corum versus Penn-American Insurance, No. 08-80732-CIV, 2009 WL 10666960, at *4 (SD Fla. June 12, 2009) (“Any underwriting instructions which the defendant may have consulted prior to issuing the policy in question do not affect the question whether this policy, as written, provides coverage in this case.”) and Milinazzo v State Farm Insurance247 FRD 691, 702 (SD Fla. 2007) (grouping the cases and stating that “the decisions suggest that underwriting records are detectable in bad faith claims, but in breach of contract, detectable only when the terms of the contract are ambiguous”) with GEICO c. JesusNo. 15-81027-CV, 2016 WL 8813844, at *3 (SD Fla. May 23, 2016) (allowing a corporate representative’s deposition to proceed on the subject of underwriting, but only with respect to the insured, in the hedging action) and AIG Centennial Insurance v. O’Neillno. 09-60551-CIV-ZLOCH, 2010 WL 4116555, at *8 (SD Fla. Oct. 18, 2010) (allowing discovery of underwriting documents, including underwriting manual, search for documents “relevant to the ‘Material Aspect of the Misrepresentation Claim Made by Centennial in its Amended Complaint.’).