VOLUME XVII, NUMBER 4
April, 2005

COURT HOLDS THAT PLAINTIFF’S VIDEO TAPE OF COMPULSORY MEDICAL EXAMINATION IS “FACT” WORK PRODUCT AND CAN ONLY BE DISCOVERED UPON SHOWING BY DEFENDANT OF NEED AND UNDUE HARDSHIP

Trena McGarrah slipped and fell on a ramped corridor while applying for a job at Bayfront Medical Center. She sued Bayfront, as well as HKS, Inc. and Beers Construction Company, the entities that designed and constructed the ramp, alleging that she sustained severe neurological injuries as a result of her fall. During the litigation, HKS demanded that McGarrah submit to a compulsory medical examination (CME) as provided for by Florida Rule of Civil Procedure 1.360. The parties agreed to allow McGarrah to have a videographer record the CME, but they did not specify or limit the purpose of the video or the use to be made of the videotape, nor did they formalize their agreement through court order.

On appeal, the Second District Court of Appeal explained the history, purpose and various applications of the work product privilege. The purpose of the work product doctrine was initially set forth by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947), where the court recognized an attorney’s need to “assemble information, sift … the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Codification of the work product doctrine took place through Federal Rule of Civil Procedure 26(b) and Florida Rule of Civil Procedure 1.280(b)(3). The civil rules distinguish between two types of attorney work product (1) materials prepared in anticipation of litigation or for trial, (“fact” work product); and (2) the mental impressions or strategies of the attorney (“opinion” work product.)

In Trena McGarrah v. Bayfront Medical Center Inc., et. al., FLW D2801, (Fla. 2d DCA, December 15, 2004), the appellate court disagreed with the trial court, and held that the videotape was clearly made in anticipation of litigation or trial, and that it therefore falls within the category of “fact” work product. The appellate court contrasted the facts of the case to those in the case decided by Judge Rondolino. Specifically, in Circuit Judge Anthony Rondolino’s case, the parties’ sought prior court approval to have the CME videotaped and to specify its classification as work product or not. Judge Rondolino recognized the policy behind allowing CME’s to be videotaped was to ensure fairness and avoid factual disputes, and stated that the videographer should not attempt to create a biased record of the CME. Because the CME was not the plaintiff’s opportunity to unilaterally make an unobjective record, Judge Rondolino determined that all parties should have equal access to the videotape and that it should not be work product. McGarrah insisted that in her case, the CME videotape was work product.

The court’s holding in McGarrah is limited to the facts of that case. Specifically, where a videotape has already been made with the parties’ consent and without any prior court order limiting the recording to an objective, unbiased depiction of the CME, the resulting videotape will likely be classified as “fact” work product and therefore protected from discovery unless the defendant establishes need and undue hardship.

Rebecca L. Jenkins

WINDSTORM INSURER IS LIABLE FOR THE POLICY’S FACE VALUE WHERE BUILDING DAMAGED BY A COVERED PERIL AND DEEMED A TOTAL LOSS

In Zennon Mierzwa v. Florida Windstorm Underwriting Association, (FWUA) 29 FLW D1528b, Florida’s Fourth District Court of Appeal held that if a building is insured as to a covered peril and is deemed a total loss, that the carrier’s liability, if at all, is to the face amount of the policy pursuant to §627.702, Florida Statutes, the Valued Policy Law (VPL). The principal issue before the court in Mierzwa was the extent of a wind insurer’s liability after Hurricane Irene, where the property in question was also insured by a flood carrier, and there was both wind and flood damage to the property.

The insured property in Mierzwa was covered by a flood policy as well as by the FWUA wind policy. The face amount of the FWUA policy was $281,000. Further, the FWUA policy contained an anti-concurrent cause provision excluding coverage for any damage other than wind. The policy also expressly excluded flood damage.

The insured brought an action against FWUA to recover the face amount of the policy plus an additional sum for ordinance or law coverage. FWUA argued that it was only liable for its pro rata share of the damage and not the face amount of the policy as the loss was caused in part by an excluded peril and because of its anti-concurrent cause clause (ACCC) language. The trial court agreed, and entered judgment that the wind carrier was liable only for its pro rata share of the damages. On review, however, the Fourth District reversed.

In an opinion written by Justice Farmer, the majority in Mierzwa held that the FWUA policy was in conflict with Section 627.702(1) because it stated that the amount of liability could be less than the face amount of the policy if the actual amount required to repair or replace the property was less than policy limits. The court pointed out that every real property casualty policy written on property in Florida, including the FWUA policy, is subject to the VPL.

The VPL states as follows:

According to the Mierzwa court, there are “two essentials” in the VPL: (1) that the building be “insured by (an) insurer as to a…covered peril;” and (2) that the building be deemed a “total loss.” The court explained that if these two essentials are true, the carrier is liable for the face amount of the policy, irrespective of what other facts are involved relative to the cost to repair or replace. The court also stated that the VPL does not require a covered peril to be “the” covered peril causing the entire loss – it need only be “a” covered peril and, that, “pro rata liability under the VPL would be in conflict with its terms, because the VPL provides that any liability of a casualty insurer where a covered peril is involved in the total loss must be for the face amount rather than pro rata with other coverages.”

Thus, the court held that the total loss of a building damaged by wind and flood required FWUA to pay the face amount of the policy under the VPL. The Mierzwa court also explained that the ACCC of the FWUA policy did not expressly state that it overrode the VPL. According to the court, because the policy was “silent” as to whether the VPL takes precedence over the ACCC, a conflict existed between the VPL text and the ACCC text, which created an ambiguity in the policy. Following the rule that ambiguities in an insurance contract are to be read in favor of the insured, the Mierzwa court applied the VPL as written and found that “if FWUA has any liability at all, even a fractional share of the total damage, under the VPL it is liable for the face amount.” The court also determined that the cost of debris removal, governmental permits, and governmental inspection of repairs for compliance with building codes were part of the cost of repairs for which a property insurer could be held liable to the insured.

Judge Gross, who filed a specially concurring opinion, stated that while he concurred with the majority’s conclusion, he disagreed in part with its reasoning. Specifically, Judge Gross agreed that the VPL controlled in the Mierzwa case and that it overrode the ACCC language of the FWUA policy, but he did not agree with the majority’s position that “if the insurance carrier has any liability at all to the insured for a building damage by a covered peril and deemed a total loss, that liability is for the face amount of the policy.” Instead, Judge Gross favored a proximate cause analysis. He believed that “the better rule is to require that a covered peril be the proximate cause of the total loss” in order to trigger the VPL. Nonetheless, Judge Gross explained that a proximate cause analysis would not change the ultimate holding in Mierzwa because it was clear that “but for the wind damage, the ordinance would not have been brought into play.”

Interestingly, a rehearing on the Mierzwa case was denied by the Fourth District on August 12, 2004. Twenty-four hours later, Hurricane Charley, the first of four hurricanes to strike Florida in a six week period during the unprecedented 2004 Hurricane Season, crossed Captiva Island before making landfall near Punta Gorda.

Kathleen M. Bonczyk