Driver Of Vehicle In Accordance With Plaintiff On Bike Lacks Standing To Challenge Subpoenas Seeking Information Contained In Claims File Of Non-party Insurers–neither Party Objected To The Subpoenas In The Lower Court Nor Participated In Writ Proceeding.
Jimenez v. Granada Insurance Co., 44 Fla. L. Weekly D930 (Fla. 3rd DCA April 10, 2019):
A non-party driver argued that the trial court departed from the essential requirements of law in failing to grant his motion for protective order directed to two non-party subpoenas served on two non-party insurance companies.
The plaintiff in the case was injured when his bike collided with Mr. Jimenez’s vehicle. Plaintiff filed a personal injury action against Mr. Jimenez’s employer and the vehicle’s owner.
The employer was insured under a commercial garage liability policy through respondent Granada, and Granada filed a declaratory judgment action against the employer and the plaintiff seeking a declaration that it was not required to defend and indemnify the employer, because the accident allegedly did not occur within the scope of defendant’s employment.
The insurer then served a non-party subpoena for production to the driver’s personal insurer and on the vehicle owner’s insurer. The subpoenas sought information contained in the claims files, specifically any and all recording statements and transcriptions of the driver with respect to the claims made in connection with the incident.
The driver moved for a protective order arguing that there was no portion of the claims files that should be produced because they were privileged work product. In ruling on the motion, the trial court ordered that the insurance company modify the two non-party subpoenas to reflect that the requested documents be produced to the driver’s counsel so that the driver could provide all non-privileged documents to the insurance company and prepare and file a privilege log.
The court had previously recognized that an insurer’s claims file is the insurer’s work product, and that privilege belongs solely to the insurer. Neither of the subpoenaed insurers objected to the non-party subpoenas in the lower court, and neither participated in the petition for writ. Therefore, the driver did not have the requisite standing to assert the work product privilege on behalf of those subpoenaed matters and could not establish the requisite irreparable harm when neither insurer participated in the lower court or in the petition.