Kesler v. Progressive Select Insurance Company

Summary

The Florida Second District Court of Appeal granted Bridgette Kesler’s petition for writ of certiorari and quashed an order compelling her former attorney, Amy Catledge, to provide additional deposition testimony in Kesler’s first-party bad faith action against Progressive Select Insurance Company. The court held that Kesler did not waive attorney-client privilege merely by filing the bad faith action and that Progressive had not established grounds to overcome the work product privilege. The court emphasized that Progressive bore the burden of proving Kesler’s alleged unwillingness to settle and had not shown the required need and undue hardship for the requested work product.

Holdings

1. Attorney-client privileged communications between a policyholder and her attorney are not discoverable in a first-party bad faith action, and the filing of a bad faith claim does not automatically waive the privilege.
2. The insured's attorney's work product is not automatically discoverable in a bad faith action; the party seeking discovery must demonstrate need and undue hardship under Fla. R. Civ. P. 1.280(c)(4).
3. Kesler did not waive her attorney-client privilege by filing a bad faith claim because the claim does not necessarily require disclosure of privileged communications with her attorney.

Questions Presented

1. Whether attorney-client privileged communications between a policyholder and her attorney are discoverable in a first-party bad faith action.
2. Whether work product materials of the insured's attorney are automatically discoverable in a first-party bad faith action.
3. Whether a policyholder waives attorney-client privilege by filing a bad faith claim.

Disposition

writ_granted