Can You Get An Insurance Company’s Claims File?
When you sue an insurance company for a dispute over a homeowners insurance claim, the adjuster’s claim file can have vital evidence that can help you prove your case. But can you get that file, as a part of the litigation discovery process?
The Claims File
When an insurance company adjusts a claim, it compiles a lot of information to figure out what to do with that claim. Everything from witness statements, to pictures, to opinions of experts it may hire, or reports from field adjusters who go out and investigate your losses, are all in the claims file.
Because it has information that is relevant to the claim, the file could be evidence or lead to evidence related to any lawsuit against the insurance company. You would think that the homeowner could just get this information by asking for it. But it’s not quite that easy.
Claims File Privileges
When homeowners ask to see that claims file or have it produced to them, the insurance company usually objects on the basis of privilege. When something is privileged, it does not have to be given to the other side.
However, there is nothing specifically in the law that says that a claims file is privileged. The “claims file privilege” is really just a privilege created by courts–it is not written in any legal code or the Florida Statutes, which does list many other kinds of privileges.
That means that courts can legally compel an insurance company to give you their claims file.
What About Work Product?
However, it is still not that easy, because insurance companies will often argue that their claim file is what is known as work product.
Work product is by law, privileged and protected. Work product is anything that is made, collected or created, that is done related to or anticipating a lawsuit. So for example, if you hire an expert to examine something for a lawsuit, that expert’s report would be privileged—you don’t have to give it to the other side, even if they ask for it.
But is an insurance company’s claims file done or collected anticipating a lawsuit? Not every insurance claim results in a lawsuit. That seems to make the insurance company’s claim baseless–in most cases, the insurance company has no idea whether any given claim will ever result in litigation when the file is created, and claims files are created and maintained, regardless of whether there is ever a dispute or lawsuit or not.
Still, courts often are sympathetic to insurance companies who try to keep their claims files private. Some homeowners’ insurance attorneys, sensing courts’ attitudes, won’t even try to get the claims file, but that can be a mistake. There’s a strong argument that the homeowner should be able to get access to it, which can very much help your homeowners insurance case.
Contact the Miami property damage insurance attorneys at Velasquez & Associates P.A. if your homeowner’s insurance company isn’t treating you fairly.