The Policyholder's Advocate®
In almost all litigation, the depositions of the individual parties are important. Often cases rise and fall based solely on this testimony. For associations, however, the party is an organization and not a person. It is therefore necessary for the association to select an individual, or group of individuals, to speak on its behalf as the corporate representative.…
Continue Reading Selecting A Corporate Representative For Deposition
We live in a digital age, where information is stored and transmitted electronically, often with little regard to the science and technology that makes it possible. Digital information is much different than traditional hard copy, print, or other physical information. Electricity, magnetic disks, and fiber optics allow information to be created, modified, transferred, and destroyed in an instant.…
Continue Reading Court Orders Forensic Examination of Association’s Computer Systems
While relying on its investigation to make determinations as to coverage and the amount of damages after a loss has occurred, insurance companies often take the position that their claims handling processes, general business practices, and financial incentives to delay, underestimate, and/or deny claims are not relevant or discoverable in litigation over breaches of the insurance contract. While some courts have bought in to this proposition, the tides are turning as more and more judges are seeing the disingenuousness of the argument.…
Reinsurance is insurance for insurance companies. Often, insurers will write large policies to condominium and homeowner associations with limits well in excess of the amounts the carrier would be willing to pay if a total loss occurred. Instead of passing on the opportunity to write the policy, insurers typically lay off a portion of the potential liability to reinsurers. By spreading the risk, insurers can limit the amounts payable from their own coffers in the event of a large scale loss.…
Continue Reading Reinsurance Information Can Play an Important Role for Associations
On September 12, 2011, in Customary Discovery Practices May Vary Greatly Between Federal And State Courts, I discussed how the Federal Middle District Court of Florida resolved a discovery dispute between Nationwide and Pepperwood of Naples Condominium Association. Recently, the Court decided another discovery dispute between the parties. This one involved Nationwide’s claim of attorney-client privilege and work product protection to some document requests. Such claims of privilege are common in litigation. The resolution of these disputes can play a very important role in the information that the policyholder can obtain to support its claims, especially in a bad faith case.…
"Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting.” Wikipedia. Recently, the Federal Middle District Court in Florida decided a discovery dispute between a condominium association and its insurer, Nationwide, in the case Pepperwood of Naples Condo. Ass’n., Inc. v. Nationwide Mut. Fire Ins. Co., No. 2:10-cv-753, 2011 WL 3841557 (M.D. Fla. August 28, 2011). Discovery disputes arise when one party asks another to produce information, but the other party coes not comply. It is common for insurers to refuse to produce claim file materials, claiming the documents are protected by certain privileges and citing other objections. The Pepperwood case involved a situation where the condominium association sued Nationwide for bad faith damages for not promptly paying all insurance proceeds from the 2004 hurricane damages and forcing it to incur additional expenses in the claim presentation through an appraisal process.…
Continue Reading Customary Discovery Practices May Vary Greatly Between Federal And State Courts
The Southern District Court in Florida recently issued an unreported opinion involving a discovery dispute between the parties where the insurer sought to have the condominium association’s expert reports stricken from consideration at trial because they were not timely disclosed. The ruling focused on disclosure requirements found in the Federal Rules of Civil Procedure. The crux of the condominium association’s case was potentially at stake in this dispute.…
Continue Reading The Importance Of Timely Disclosing Expert Reports
During litigation in Florida first-party property insurance disputes, insurers often withhold their entire claims files from discovery by relying the work product doctrine. The claim file contains reports, estimates, photos and other information that is pertinent to the issues in a coverage dispute between a policyholder and its insurer. Insurers attempt to shield the entirety of the claim file from production in discovery where there should be disclosure between the parties. On the flip side, insurers often litigate issues regarding whether policyholders fully complied with their requests for documents and information in compliance with the policy of insurance. It would seem fair and logical that such disclosure would be a two way street, but insurers assert that it is definitely a one way street. When an insurer claims privilege to its entire claim file, the policyholder has no choice but to litigate that issue to obtain any information.…
In Florida, discovery in breach of contract actions usually centers around the mystical “claim file” which insurers guard more closely than their first born child. As most who read this blog already know, the “claim file” has been held to be generally protected by Florida courts, and usually undiscoverable in a breach of contract action.…
