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Claims investigations and incident reports are a crucial element
for any corporate defendant in tracking potential future claims as
well as documenting trends for risk analysis. Opposing attorneys
often seek to obtain this information in the hopes it may provide
valuable information and first impressions that counsel can then
use against the insured in the course of litigation. The First
District Court of Appeal recently handed down an excellent decision
in which the court not only refused to permit disclosure of an
insured's claim investigation but also provides valuable
insight to corporate defendants to successfully protect their
claims investigation analyses in the future.
In Heartland Express, Inc. v. Torres, 37 Fla. L. Weekly
D1503a (Fla. 1st DCA, June 25, 2012), Plaintiff sued
Heartland Express in a negligence action arising from a traffic
accident. Plaintiff took the deposition of Heartland's
corporate representative, and in the deposition sought information
that clearly would have been obtained during the initial claims
investigation. Heartland's counsel instructed the
representative not to answer questions such as "Was a final
determination made that the accident was
preventable?" The trial court granted Plaintiff's
counsel's motion to compel responses to the questions
pertaining to the accident investigation.
On appeal, the First District Court of Appeal first noted that
orders erroneously compelling discovery of privileged information
were reviewable by certiorari (appeal prior to issuance of final
judgment) due to the potential for causing irreparable
injury. The Court held that "work product protection
extends to information gathered in an investigation conducted in
anticipation of litigation by corporate non-attorney
employees." Id. In citing
several supporting cases, the Court also noted that information
gathered prior to suit being filed, or even the filing of a claim,
does not lose its work product privilege. The Court had no
problem in concluding Heartland's risk manager's analysis
of the claim was not discoverable, nor was it error for counsel to
instruct the witness not to answer those questions. The Court
also expressly noted that Plaintiff's counsel did not make a
showing of need or undue hardship, which can permit compelling
disclosure of work product information under certain
circumstances.
Key points to take away from the Heartland decision
are:
Incident reports and information gathered from claims
investigations can be protected as work product;
Even information or documents gathered presuit or
prior to filing of a claim can and should be protected if
done in anticipation of litigation;
Work product protection for claims investigations does not
simply apply to investigations by attorneys or risk management
professionals, but to any employee gathering information for
anticipated future litigation; and,
Ensure employees (both managerial and associate level) are
advised that one of the purposes of submitting information in
incident reports or as part of the investigation process is to
defend against potential litigation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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