Your bad faith does not waive my attorney client privilege

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 14

CASES FROM THE WEEK OF APRIL 10, 2026

BAD FAITH PLAINTIFF DOES NOT WAIVE ATTORNEY-CLIENT OR WORK PRODUCT PRIVILEGE MERELY BY FILING A FIRST-PARTY BAD FAITH ACTION; INSURER MAY NOT COMPEL DEPOSITION TESTIMONY FROM PLAINTIFF’S UM LAWYER ABOUT SETTLEMENT COMMUNICATIONS AND STRATEGY, ABSENT AN ACTUAL WAIVER OR THE SHOWINGS REQUIRED BY RULE 1.280(c)(4)

Kesler v. Progressive Select Ins. Co., 52 Fla. L. Weekly D655 (Fla. 2d DCA Apr. 1, 2026):

This certiorari case arose out of a first-party bad faith lawsuit arising from an uninsured/underinsured motorist claim. The plaintiff was injured in March 2018 by an underinsured driver operating a stolen vehicle. The plaintiff had $200,000 in UM coverage.  She provided medical records and bills totaling about $67,000. She demanded the policy limits. The insurer offered $43,000.  At trial, the jury heartily disagreed with the carrier and awarded a verdict of $1,676,587.90 against it.

During pretrial proceedings on the bad faith claim, the insurer deposed the attorney who represented the plaintiff in the UM case and asked questions aimed at whether and when the plaintiff would have accepted less than policy limits, along with questions about valuation methods, internal firm communications, and other strategy topics.  The UM attorney asserted attorney-client and work product privileges and refused to answer; the insurer moved to compel, arguing the plaintiff waived any privilege “by virtue of” bringing the bad faith lawsuit. The trial court then granted the motion without imposing any meaningful limits or parameters.

The Second District granted certiorari and quashed the order to the extent it required further deposition testimony.  The court reaffirmed that the attorney-client privilege is not overcome simply because the discovery is relevant or useful, and there is no general “first-party bad faith” exception to the privilege absent a statutory exception.  It explained how work product privilege, which may give way to the need for the discovery to advance the action, differs from attorney client privilege which is NOT concerned with the litigation needs of the opposing party.

The court held that the plaintiff did not waive the privilege merely by filing the bad faith action; waiver occurs only under the “at issue” doctrine when the claim necessarily requires use of the privileged material. 

While the insurer’s “unwillingness to settle” theory was treated as an asserted defense, the court noted those motives and communications are not elements the plaintiff must prove to establish bad faith; if the insurer raises unwillingness as a defense, the insurer bears the burden and cannot waive the plaintiff’s privilege for her. Also, there are other ways to prove that the insurer “could” have settled the claim without delving into the plaintiff’s communications with her lawyers.

As to work product privilege, the court also rejected the insurer’s position that the plaintiff’s counsel work product was automatically discoverable in a bad faith case. Instead, the insurer still has to satisfy rule 1.280(c)(4), which includes making a showing of need and undue hardship. As this record did not establish those prerequisites, the privilege was intact and the court issued the writ.

NEGLIGENT CREDENTIALING CLAIM DISMISSED FOR FAILURE TO COMPLY WITH CHAPTER 766 PRESUIT REQUIREMENTS–EXPERT AFFIDAVIT MUST CORROBORATE GROUNDS FOR A CLAIM AGAINST EACH PROSPECTIVE DEFENDANT AND AN AFFIDAVIT CRITICIZING ONLY THE TREATING PHYSICIAN DOES NOT PRESERVE A SEPARATE CREDENTIALING THEORY AGAINST THE ENTITY

Palm Beach General Surgery, LLC v. Grazioli, 51 Fla. L. Weekly D645 (Fla. 3d DCA Mar. 31, 2026):

The plaintiffs sued over injuries allegedly caused by a surgeon’s December 2022 treatment and surgery. They also pled a direct negligent credentialing claim against the surgeon’s employer, Palm Beach General Surgery, LLC. 

Before suit, the plaintiffs sent a notice of intent accompanied by an expert affidavit listing ways the physician’s and the entity’s care deviated from the standard of care. However, the affidavit did not include any allegations tied to negligent credentialing.

The employer entity moved to dismiss the negligent credentialing count for failure to comply with Chapter 766 presuit requirements, pointing out there was no expert corroboration of a credentialing theory, and no presuit notice of that theory.  The trial court rejected the presuit argument and denied that portion of the motion, and the entity sought certiorari.

The Third District granted certiorari and quashed the order as it related to the negligent credentialing count.  The court emphasized the statutory theme running through Chapter 766: presuit investigation and counsel’s good-faith certificate must establish grounds for an action against each named defendant, and the presuit expert corroboration requirement is likewise directed to each prospective defendant. 

On this record, where the expert affidavit said nothing about credentialing, the plaintiffs did not satisfy the presuit requirements for that distinct theory against the entity, and certiorari was appropriate to enforce those presuit protections (and essentially to dismiss the plaintiff’s claim pursuant to that theory).

PERSONAL JURISDICTION ORDER REVERSED; WHERE COMPETING AFFIDAVITS CONFLICT ON FLORIDA CONTACTS, TRIAL COURT MUST HOLD A LIMITED EVIDENTIARY HEARING UNDER VENETIAN SALAMI, AND COURT MAY ALLOW LIMITED JURISDICTIONAL DISCOVERY BEFORE THAT HEARING

Amin v. Wolfgang Puck, 51 Fla. L. Weekly D659 (Fla. 2d DCA Apr. 1, 2026):

The plaintiff brought a products liability action alleging a pressure cooker designed/manufactured/licensed/marketed/distributed/sold by the defendants had serious defects and that she sustained burn injuries from the lid. 

Two California defendants, Wolfgang Puck Enterprises, Inc. and Wolfgang Puck, moved to dismiss for lack of personal jurisdiction. They supported their motions with affidavits generally denying Florida residence, registration, business activity, tortious acts, or property/bank accounts in Florida. The affidavits described Mr. Puck’s relationship as limited to a licensing agreement.

The plaintiff responded with an attorney affidavit and exhibits asserting extensive Florida contacts, including that Mr. Puck traveled to Florida hundreds of times between 2001 and 2023 to film “at least 1880 infomercial broadcasts” for the pressure cooker at a Home Shopping Network Florida studio, and referencing a marketing agreement requiring Mr. Puck’s personal participation.

The circuit court held a nonevidentiary hearing. While it ruled that it lacked personal jurisdiction over the corporation, it did find it had jurisdiction over Mr. Puck.

The Second District reversed and remanded. It explained that when the parties’ affidavits cannot be harmonized and present a direct factual conflict on jurisdictional facts, Venetian Salami requires the trial court to hold a limited evidentiary hearing to resolve the jurisdiction dispute.  The court directed the circuit court to conduct that hearing on remand, indicating that it should also consider allowing limited jurisdictional discovery before the hearing.