Zirkelbach
Constr. v. Rajan, 2012 Fla. App. LEXIS 12200 (Fla. 2d DCA July 27, 2012)
revisits the conflict between the Fourth District Court of Appeal and all the
other districts regarding work product. All of the district courts hold generally that
the work product privilege attaches to statements and materials prepared by a
party’s investigator or insurer in anticipation of litigation. The district courts differ concerning the
meaning of “prepared in anticipation of litigation.” In the Fourth District, materials do not
constitute protected work product unless they were prepared when the
probability of litigation was “substantial and imminent.” The other districts apply a less stringent
foreseeability standard where materials such as these may qualify as work
product even if no specific litigation was pending at the time the materials
were compiled. Thus, even preliminary investigative materials are privileged if
compiled in response to some event which foreseeably could be made the basis of
a claim. To date, the Supreme Court of
Florida has not resolved the conflict among the district courts on this issue.
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/July/July%2027,%202012/2D11-3813.pdf
PUBLIC RECORDS
REQUESTS
Althouse
v. Palm Beach County Sheriff's Office, 2012 Fla. App. LEXIS 12109 (Fla. 4th DCA
July 25, 2012) explained that the issue of entitlement to fees and costs
under F.S. §119.12 depends on whether the agency’s refusal was lawful, which in
turn hinges on whether the public entity had a “reasonable” or “good faith”
belief in the soundness of its position in refusing production.
http://www.4dca.org/opinions/July%202012/07-25-12/4D10-2221.op.pdf
Soronson
v. State Farm Fla. Ins. Co., 2012 Fla. App. LEXIS 12100 (Fla. 4th DCA July 25,
2012) affirmed
summary judgment for the insurer where the insureds gave notice of their claim
three years after the hurricane instead of complying with the policy. The court agreed with the insurer that the
policy provisions requiring the insureds to give notice of the loss and submit
a sworn proof of loss within 60 days of the loss were conditions precedent to
suit, and not a breach of cooperation clauses, and that the delayed discovery rule
did not apply. The untimely notice is
presumed to have prejudiced the insurer. Thus, the burden shifted to the
insureds to show that the insurer was not prejudiced. Here, the insureds failed to come forward
with sufficient counter evidence to reveal a genuine issue of material fact.
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