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GEICO General Insurance Company v. Thomas A Moultrop, Case No. 4D14-1844 (4th DCA)

In Moultrop, the defendant, GEICO, petitioned for a writ of certiorari to review an order that allowed discovery of attorney-client privileged communications in a bad faith action. Following an in camera inspection, a special master determined that a number of documents from the insurer's attorney's litigation file in the underlying coverage case were privileged but discoverable in the bad faith case. The special master found that the attorney-client information from the underlying suit would be discoverable unless it pertained to bad faith aspects of the case.

The Fourth DCA found that the trial court order was contrary to Genovese v. Provident Life & Accident Insurance Co., and departs from the essential requirements of the law. "Availability of the attorney-client privilege does not depend on whether this is a bad faith case or whether the information related to legal advice about bad faith." "[W]hen an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action." The Fourth DCA therefore ruled that absent an exception, such as when the insurer places counsel's advice at issue, attorney-client privileged information from the underlying suit is not discoverable in a bad faith case. The Fourth DCA therefore granted the petition and quashed the portion of the order requiring production of attorney-client privileged material.

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