<< Return to Publications List

Are Underwriting and Claims Files Discoverable?: Recent Developments in Florida Law

Sarah R. Goldberg | December 12, 2023

In first-party property insurance lawsuits in Florida, the central question often revolves around coverage—whether the reported claim is covered under the insurance policy. Attorneys for policyholders commonly seek the production of underwriting and claims files via written discovery or corporate representative depositions.
Traditionally, insurers object to such requests, citing work product protection and asserting that the files are not relevant and undiscoverable until the underlying coverage dispute is resolved. Precedents such as the following, have supported this objection:
State Farm Florida Ins. Co. v. Kramer, 41 So. 3d 313, 314 (Fla. 4th DCA 2010), stands for the proposition that the insurer's claim, underwriting, and litigation files are protected work product until the breach of contract issues are resolved; and
State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010), holds “[U]ntil the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims filed or to the insurer's business policies or practices regarding handling of claims.”
However, recent cases have found there is no hard rule that the underwriting file or claims file is not discoverable during the litigation of a coverage dispute. Avatar Prop. & Cas. Ins. Co. v. Simmons, 298 So. 3d 1252, 1254 (Fla. 5th DCA 2020), holds that a blanket objection to production of the claims file in a coverage dispute was insufficient to support a work product objection.
The issue was examined further in People’s Trust Ins. Co. v. Foster (333 So. 3d 773, Fla. 1st DCA 2022), where the court rejected the notion that underwriting manuals are never discoverable in a coverage dispute. The court acknowledged that while requests for underwriting files or manuals may sometimes be premature, they are never categorically protected from production in such disputes. This case involved Mr. and Mrs. Foster's water damage claim due to a pipe leak, with the carrier objecting to their request for the underwriting manual. The trial court compelled the carrier to produce it. On appeal, the court found the underwriting file relevant as the carrier claimed pre-existing damage, emphasizing the absence of a privilege log as grounds to uphold the discovery order.
Most recently, the First District Court of Appeal, in Homeowner’s Choice Property & Casualty Insurance Company v. Thompson, 2023 WL 8100735 (Fla. 1st DCA Nov. 22, 2023), held that “[d]ocuments in claims or underwriting files are not automatically work product.” The Court went on to explain the carrier did not demonstrate that requested documents, such as field photographs and inspection notes, were prepared in anticipation of litigation. Additionally, the court noted the insufficiency of the carrier's privilege log in supporting work production objections.
Plaintiffs will push for production of the full underwriting and claims files based on the Foster and Thompson cases. To prepare and safeguard production of documents the carrier does not believe should be produced, the carrier should (1) carefully review their affirmative defenses, and (2) identify relevant documents to those defenses. For instance, if the damages being claimed by the insured was documented in inspection photographs from a prior claim or within an underwriting inspection completed before the policy was issued, those documents would be relevant to a pre-existing damage defense. Photographs from an underwriting inspection or photographs from a prior claim may not be relevant if the carrier is not asserting overlap in damages with a prior claim.  
After making a careful assessment, all documents contained within the underwriting and claims file relevant to the affirmative defenses asserted should be produced without objection.  For documents not relevant to the defenses, a detailed privileged log should be prepared, specifying objections like prematurity or irrelevance to the case's issues or defenses. This approach to responding to discovery aims to prevent the court from granting the insured complete access to the files and encourages the court to focus on documents relevant to the case's coverage issues.
Are Underwriting and Claims Files Discoverable?: Recent Developments in Florida Law



Miami Office

9100 South Dadeland Blvd., Suite 1800
Miami, FL 33156

T: 305.374.1212 F: 305.374.7846

view location | map location


Key West

Key West Office

402 Applerouth Lane, Suite 2C
Key West, FL 33040

T: 305.509.7300 F: 305.374.7846

view location | map location
Ft. Lauderdale

Ft. Lauderdale Office

110 East Broward Blvd., Suite 1400
Fort Lauderdale, FL 33301

T: 954.768.0011 F: 954.768.0514

view location | map location
West Palm Beach

West Palm Beach Office

1700 Palm Beach Lakes Blvd., Suite 800
West Palm Beach, FL 33401

T: 561.640.0303 F: 561.640.0524

view location | map location

Indian River | Martin | Okeechobee | Palm Beach | Saint Lucie


Tampa Office

400 North Ashley Drive, Suite 1200
Tampa, FL 33602

T: 813.204.9776 F: 813.204.9660

view location | map location
Hernando | Hillsborough | Manatee | Pasco | Pinellas | Polk | Sarasota

Orlando Office

201 South Orange Avenue, Suite 475
Orlando, FL 32801

T: 407.245.3630 F: 407.245.7685

view location | map location
Brevard | Highlands | Orange | Osceola | Seminole

Ocala Office

1396 NE 20th Avenue, #500
Ocala, FL 34470

T: 352.622.4222 F: 352.622.9122

view location | map location
Alachua | Citrus | Dixie | Gilchrist | Lake | Levy | Marion | Putnam | Sumter | Volusia

Jacksonville Office

1 Independent Drive, Suite 1601
Jacksonville, FL 32202

T: 904.396.0062 F: 904.396.0380

view location | map location
Baker | Bradford | Clay | Columbia | Duval | Flagler | Hamilton | Nassau | Saint Johns | Union

Pensacola Office

125 West Romana Street, Suite 550
Pensacola, FL 32502

T: 850.434.0003 F: 850.434.0223

view location | map location

Escambia | Holmes | Okaloosa | Santa Rosa | Walton


Tallahassee Office

1705 Metropolitan Boulevard, Suite 202
Tallahassee, FL 32308

T: 850.222.5188 F: 850.222.5108

view location | map location

Bay | Calhoun | Franklin | Gadsden | Gulf | Jackson | Jefferson | Leon | Liberty | Wakulla | Washington | Madison | Lafayette | Taylor 

Ft. Myers

Ft. Myers Office

13350 Metro Parkway, Suite 201
Fort Myers, FL 33966

T: 239.334.8403 F: 239.939.0700

view location | map location

Charlotte | Collier | DeSoto | Glades | Hardee | Hendry | Lee


Mobile Office

11 North Water Street, Suite 10290
Mobile, AL 36602

T: 251.308.3351 F: 251.287.1624

view location | map location

Baldwin | Washington | Clarke | Escambia | Covington | Geneva | Houston | Henry |  Dale | Coffee | Barbour | Pike |Crenshaw | Butler  | Monroe | Clarke | Choctaw | Wilcox | Bullock | Russell

hover over location name to preview, or click it for full details

Our Firm

our hi(story)

In 1963, Gene Kubicki founded the firm based on dedication to excellence. The same high standards have been maintained for over five decades -- years which have seen the firm’s ranks swell to over 200 attorneys.


Our team knows return clients are the life blood of any law firm and this is why we ensure client satisfaction by an exacting attention to service and quality.  Client service coupled with a spectacular work ethic, makes our team hard to beat.

find an attorney


Kubicki Draper is committed to fostering an environment of equal opportunity for success and believes diversity is not only a moral imperative, but is also sound business practice.

Read More


In response to the growing needs of its clients, the firm began expanding in the early 1980's and today is a diverse full-service law firm providing trial, appellate, coverage, commercial and real estate transaction services.

browse our practice areas


Kubicki Draper enjoys a national reputation for expertise in the handling of complex, high stakes litigation matters, as well as, appellate, general commercial and real estate practice.

preview our results


With a dozen offices throughout the State of Florida and other key points in the southern parts of Georgia, Alabama, and Mississipi, our firm is familiar to every venue statewide and will never get home-teamed.

find the location near you