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 THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

THE BARTRAM, LLC,

a Delaware limited liability

company,

Plaintiff,

v. CASE NO. 1:10-cv-00028-SPM-GRJ

LANDMARK AMERICAN INSURANCE 

COMPANY, an Oklahoma corporation, 

ROCKHILL INSURANCE COMPANY, 

an Arizona corporation, and 

WESTCHESTER SURPLUS LINES 

INSURANCE COMPANY, a Georgia 

corporation,

Defendants.

_____________________________/

O R D E R

Pending before the Court are: (1) Amended Plaintiff’s Motion To Compel

Discovery From Landmark American Insurance Company (Doc. 63), (2) Plaintiff’s

Motion To Compel Discovery From Westchester Surplus Lines Insurance Company

(Doc. 65), and (3) Plaintiff’s Amended Motion To Compel Discovery From Rockhill

Insurance Company. (Doc. 66.) Defendants have filed a single response addressing 1

all three motions. (Doc. 73.) For the reasons discussed below, Plaintiff’s motions are all

due to be GRANTED to the extent of this Order. 

I. INTRODUCTION

This action involves claims for damages that occurred to an apartment project

The Court authorized Defendants to file a single response addressing all three motions during a

1

December 15, 2010 telephonic hearing on an unrelated motion in this case.
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owned by Plaintiff in Gainesville, Florida as a result of alleged construction defects. 

Prior to construction of the apartment project, Plaintiff purchased four layers of builder’s

risk insurance from the Defendants, which collectively provided coverage in excess of

$25,000,000. Defendant Landmark American Insurance Company (“Landmark”) issued

policies that provided levels 1 and 4 of the coverage, while Defendant Rockhill

Insurance Company (“Rockhill”) issued the policies that comprised level 2 of the

coverage. Defendant Westchester Surplus Lines Insurance Company (“Westchester”)

issued the policies that provided level 3 of the coverage. 

Plaintiff contends it first became aware of the construction defects that led to the

damage to its apartment project in July 2008. Plaintiff submitted claims to each

Defendant for payment under the respective policies issued by each Defendant. Even

though none of the three Defendants had formally denied Plaintiff’s claims, Plaintiff,

nevertheless, filed suit on February 17, 2010 seeking a declaratory judgment that its

losses are covered under the policies issued by Defendants and alleging breach of

contract by each Defendant in failing to provide payment under those policies. 

The discovery dispute raised in Plaintiffs’ current motions concern a set of

virtually identical interrogatories and requests for production that were sent to each

Defendant. On June 14, 2010, Plaintiff served its First Request for Production of

Documents upon each Defendant, which requested, among other documents,

production of all documents in Defendant’s possession regarding claims submitted by

Plaintiff related to the apartment project and all documentation relating to any

investigation performed by each Defendant concerning any losses or damages that

Plaintiff had reported in connection with the apartment project. On July 28, 2010, each

Case No: 1:10-cv-00028-SPM -GRJ
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Defendant served its responses to the requests for production, in which Defendants

objected on the grounds that each request for production was overbroad, vague, and

ambiguous and that the requested documents were protected under state law by the

work product doctrine and attorney-client privilege. 

On June 14, 2010, Plaintiff also served its First Set of Interrogatories upon each

Defendant, requesting, among other things, that each Defendant identify everything that

it had done to investigate the claims submitted by Plaintiff and to identify whether each

Defendant had a standard protocol in notifying a builder’s risk insurance policyholder

whether a particular claim was covered by the policy or not. On July 22, 2010, each

Defendant served its responses to the interrogatories, objecting to the requested

information on the grounds that the requests were irrelevant and privileged under state

law based on both attorney-client privilege and the work product doctrine. 

In the current motion, Plaintiff seeks an order of this Court compelling each

Defendant to fully respond to the interrogatories and compelling each Defendant to

produce responsive documents, including each Defendant’s claims files. Further,

Plaintiff requests the Court to issue an order compelling Defendants Landmark and

Rockhill to produce all documents listed on their respective privilege logs. 

In their response to Plaintiffs’ motion Defendants advise that in the interest of

resolving the issues raised by Plaintiff’s motions, the Defendants agree to provide

amended responses, produce additional documents, and provide amended privileged

logs. There is, however, still a single request for production to which Defendants

continue to object on relevancy grounds.

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II. DISCUSSION

A. Requests for Production

1. Plaintiff’s Requests for Production Nos. 1-6 and 8-14

Plaintiff seeks an order from this Court compelling Defendants to fully respond to

and produce more documents in response to requests nos. 1-14 of Plaintiff’s First

Request for Production of Documents, including all the documents listed on the

privilege logs of Defendants Landmark and Rockhill and all of the documents in the

claims file of each Defendant. 

Initially, relying upon Florida state law, Defendants took the position that all of the

documents in their respective claims files were privileged from disclosure as work

product. The work product doctrine in federal court, however, is governed by federal

law, not state law. Under federal law an insurer’s claims files are not automatically

entitled to protection under the work product doctrine in a first party insurance dispute. 

The Atrium On The Ocean II Condominium Association, Inc. v. QBE Insurance Corp.,

No. 06-14326-CV, 2007 WL 2972937, at *1 (S.D. Fla. Oct. 9, 2007)(“Indeed, case law

strongly supports the Magistrate’s finding that, under federal law, there is no blanket

protection of an insurance company’s claim file.”). Further, under federal law the date

which triggers the application of the work product doctrine in the context of a first party

insurance coverage dispute is the date of the formal denial of the claim by the insurer.

Thus, an insurer who wishes to withhold from discovery documents prepared prior to

that date must demonstrate that the particular documents were prepared in anticipation

of litigation in order for the work product protection to apply. Royal Bahamian Ass’n.,

Inc. v. QBE Insurance Corp., 268 F.R.D. 695, 698 (S.D. Fla. 2010); Cutrale Citrus

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Juices USA, Inc. v. Zurich American Insurance Group, No. 5:03-cv-420-Oc-10GRJ,

2004 WL 5215191, at *2 (M.D. Fla. Sept. 10, 2004). 

Apparently recognizing that because there was no denial of coverage before suit

was filed, Defendants concede in their Response that at a minimum the cut-off date for

triggering work product is the date Plaintiff filed this action, February 17, 2010. 

Defendants, therefore, represent that they will produce all documents prepared by the

them prior to February 17, 2010, subject to a few documents which Defendants 

contend are protected by attorney-client privilege, the work product doctrine or are

completely irrelevant. 

Accordingly, Plaintiff’s motions to compel are due to be GRANTED with respect

to requests nos. 1-6 and 8-14 of Plaintiff’s First Request for Production of Documents to

each Defendant. Each Defendant shall produce the documents responsive to requests

nos. 1-6 and 8-14 of Plaintiff’s First Request for Production of Documents. With regard

to any documents to which Defendant still claims are privileged or protected as trial

preparation material, each Defendant shall prepare and serve an amended privilege

log. As to each document in the amended privilege log, Defendants shall describe the

nature of the document and the information required by Fed. Civ. P. 26(b)(5)(A), which

is sufficient to allow the Plaintiff to assess the claim of privilege.

2. Plaintiff’s Request for Production No. 7 

The only request for production still challenged by that Defendants is request for

production no. 7, which in relevant part required each Defendant to produce:

Your standard protocol or operating procedure in investigating and

responding to builder’s risk claims including a) standard protocol in

notifying an insured that its builder’s risk claim is covered or denied (even

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if the quantum is not yet determined), b) standard protocol in conducting

inspections of the property, c) standard protocol in demanding

examinations under oath, and d) standard protocol with respect to the

length of time it takes to investigate a builder’s risk claim.

Defendants claim that this request requires the production of document which are

irrelevant. Defendants argue that the issue in this case is coverage, not bad faith on the

part of Defendants, and therefore Defendants’ claims procedures are irrelevant.

Fed. R. Civ. P. 26(b), which governs the scope of discovery, provides that a party

may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s

claim or defense” and that “[r]elevant information need not be admissible at the trial if

the discovery appears reasonably calculated to lead to the discovery of admissible

evidence.” Fed. R. Evid. 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” 

Notably, the party who seeks to exclude discovery as irrelevant bears the burden of

demonstrating that it is indeed irrelevant. See, e.g., Graham v. Casey’s General

Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002)(“The party opposing discovery has the

burden of showing the discovery is overly broad, unduly burdensome, or not relevant.”).

This case is a first party insurance coverage dispute in which Plaintiff seeks a

declaration that the damage to its apartment project was covered by each of the

builder’s risk policies issued by Defendants. Assuming the claims are covered Plaintiff

seeks damages for breach of contract. As Defendants correctly point out, in first party

insurance coverage disputes, as here, the proper scope of discovery does not include

discovery of information regarding issues of bad faith. See, e.g., Buckley Towers

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Condominium, Inc. v. QBE Insurance Corp., No. 07-22988-CIV, 2008 WL 2645680, at

*2 (S.D. Fla. June 26, 2008)(“In the context of first-party insurance coverage disputes,

evidence geared solely to support a bad faith claim is premature and not discoverable,

as arguments related to bad faith liability ... are premature until the coverage dispute is

resolved.”); Milinazzo v. State Farm Insurance Co., 247 F.R.D. 691, 696 (S.D. Fla.

2007). 

The standard protocol and time frame in which each of the Defendants

investigate, process, and ultimately deny or cover builder’s risk claims is, therefore, not

relevant in this action because the claims and defenses in this case depend upon the

language of the individual policies issued by Defendants and whether these policies

cover Plaintiff’s losses. Whether Defendants’ failure to pay the claims constitutes bad

faith is simply not an issue at this stage. Accordingly, for this reason, Plaintiff’s motions

to compel are due to be DENIED with respect to request for production no. 7. 

Defendants therefore are not required to produce the documents responsive to request

for production no. 7. 

B. Interrogatories

Plaintiff also seeks an order from this Court compelling Defendant Landmark to

answer interrogatories 4, 6, and 11, Defendant Westchester to answer interrogatories 6

and 7 and Defendant Rockhill to answer interrogatories 5 and 6 from Plaintiff’s First Set

of Interrogatories. The relevant interrogatories are identical – except one interrogatory

directed to Defendant Landmark requesting information concerning the affirmative

defense that there were dishonest/criminal acts on Plaintiff’s part that would operate to

exclude coverage under the policies issued by Landmark. Each interrogatory requests

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the Defendant to explain whether it has standard protocol in denying a builder’s risk

claim, what that protocol is, and what actions each Defendant took in investigating

Plaintiff’s claims. Defendants represent in their Response that they will provide

amended responses to Plaintiff’s First Set of Interrogatories. Accordingly, Plaintiff’s

motions are GRANTED with respect to interrogatories 4, 6, and 11 directed to

Landmark, interrogatories 6 and 7 directed to Westchester and interrogatories 5 and 6

directed to Defendant Rockhill of Plaintiff’s First Set of Interrogatories. Defendants

shall provide full and complete responses to each of those interrogatories.

III. CONCLUSION

In light of the foregoing, it is ORDERED that:

(1) Plaintiff’s Amended Motion To Compel Discovery From Landmark American

Insurance Company (Doc. 63), Plaintiff’s Motion To Compel Discovery From

Westchester Surplus Lines Insurance Company (Doc. 65), and Plaintiff’s

Amended Motion To Compel Discovery From Rockhill Insurance Company (Doc.

66) are GRANTED. With regard to Plaintiff’s First Requests for Production of

Documents nos. 1-6 and 8-14, Defendants shall produce all documents

responsive to each of these requests.

(2) Plaintiff’s motions to compel are DENIED with regard to Request For Production

No. 7.

(3) To the extent that any Defendant continues to assert that any document is

privileged under the attorney-client privilege or protected as trial preparation

materials, the Defendant shall prepare and serve an amended privilege log in the

form provided under Fed. Civ. P. 26(b)(5)(A).

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(4) After Plaintiff has reviewed the amended privilege logs, to the extent that Plaintiff

still seeks the production of any of the documents on the logs, Plaintiff shall

confer in good faith with Defendants as required by Fed. R. Civ. P. 37 and Local

Rule 7.1(B) in an effort to resolve the matter. If there is still a dispute regarding

the production of any document on the privilege logs, Plaintiff may file a

supplemental motion to compel production of any such documents within ten

(10) days of service of the amended privilege log. Defendants shall have ten

(10) days from the filing of any such supplemental motion to compel to file a

response. 

(5) To the extent that the parties want the Court to conduct an in camera review of

any documents, then such a request should be included in the motion to compel

or in the response to the motion.

DONE AND ORDERED this 4 day of February, 2011. 

th

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

Case No: 1:10-cv-00028-SPM -GRJ