Allstate Indemnity Co. V. Ruiz

We have for review Allstate Indemnity Co. v. Ruiz, 780 So. 2d 239 (Fla. 4th DCA 2001), which expressly and directly conflicts with a number of cases from other district courts with regard to issues concerning application of work product privilege to shield documents from discovery in the insurance bad faith context. See Vesta Fire Ins. v. Figueroa, 821 So. 2d 1233 (Fla. 5th DCA 2002); Fla. Farm Bureau Gen. Ins. Co. v. Copertino, 810 So. 2d 1076 (Fla. 4th DCA 2002); Wal-Mart Stores, Inc., v. Ballasso, 789 So. 2d 519 (Fla. 1st DCA 2001); McRae's, Inc. v. Moreland, 765 So. 2d 196 (Fla. 1st DCA 2000); Prudential Ins. Co. of Am. v. Fla. Dep't of Ins., 694 So. 2d 772 (Fla. 2d DCA 1997); Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So. 2d 760 (Fla. 2d DCA 1989). Because we conclude there is clearly conflict and confusion in the application of discovery concepts in the case law, and particularly in the insurance bad faith context, we determine that we have jurisdiction in this case and that we should exercise our discretion to resolve the conflict. See art. V, § 3(b)(3), Fla. Const. It is our view that the conflict regarding whether the work product privilege attaches to materials created when litigation is "substantial and imminent" as held in Ruiz, as opposed to when legal action is "merely foreseeable," as held in the conflict cases, in this context is an unnecessary and unfortunate outgrowth of the inappropriate distinctions with regard to discovery rules applicable to statutory first-party and third-party bad faith actions, whether statutory or common law, developed by Florida courts, and generated by interpretations of our decision in Kujawa v. Manhattan National Life Insurance Co., 541 So. 2d 1168 (Fla. 1989). For the reasons set forth herein, we quash the decision of the district court below, remand the case to the district court for further consideration consistent with this opinion, clarify the applicable law and recede from our decision in Kujawa.