In West Bend Mutual Insurance Company v. Higgins, _____ So.2d _____ (Fla. 5th DCA March 27, 2009), the insured brought a first-party bad faith case against West Bend pursuant to Florida Statute Section 624.155. The insured sought discovery of the claims file from the underlying case, including attorney-client material generated in the underlying case.
The 5th DCA precluded discovery of the attorney-client materials, holding that generally, attorney-client protected documents remain privileged in the first-party bad faith context. However, the court recognized that there are statutory and implied waivers of the attorney client privilege. One such implied waiver is a litigants reliance on "advice of counsel" defense which the court stated was not implicated in this appeal.
Often through thorough questioning of the adjuster, or with a good set of requests for admissions, the attorney for the insured will be able to get the adjuster to admit that he or she did in fact rely on the advice of counsel in making certain decisions in the handling of the case. It is unclear if that alone will result in a waiver of the privilege. Clearly, the privilege will be waived if the defendant actually interposes the defense of advice of counsel, or third-parties in its attorneys from the underlying case.