This summary highlights recent Florida state appellate decisions and published federal court opinions relevant to insurance practitioners throughout Florida.
Kessler v. Progressive Insurance
Fla. 2d DCA (2026) – Insurance Bad Faith / Discovery / Privilege
Holding
Petition granted and order quashed. Filing a bad faith claim does not create a waiver of the attorney-client privilege or work product doctrine. The plaintiff’s underlying counsel cannot be compelled to disclose case evaluations or communications regarding settlement.
Discussion
This Florida appellate decision addresses the scope of discovery in insurance bad faith litigation following an excess verdict. During the bad faith case, the plaintiff’s underlying personal injury attorney was deposed. The insurer sought testimony regarding the attorney’s evaluation of the case and the client’s willingness to settle.
The attorney objected on the basis of attorney-client privilege and the work product doctrine, which protect confidential communications and attorney mental impressions. The trial court overruled those objections and ordered the attorney to answer. It reasoned that the information was relevant to settlement issues and that filing a bad faith lawsuit created a limited waiver of those protections.
The Second District disagreed and granted certiorari relief. The court held that a bad faith action does not, by itself, waive attorney-client privilege or work product protections. It rejected the approach taken by many federal district courts and concluded that the plaintiff’s attorney could not be forced to disclose privileged communications or strategic impressions about the underlying case.
Practical Implications
- Attorney-client privilege and work product protections remain intact in Florida bad faith litigation. This limits access to plaintiff counsel’s internal evaluations and settlement discussions.
- Insurers may face constraints in developing evidence regarding a claimant’s willingness to settle. This can impact exposure analysis in bad faith claims.
- Discovery strategy in Florida state court may differ from federal court trends, requiring careful jurisdiction-specific evaluation.
Lopez v. U-Haul
Fla. 3d DCA (2026) – Insurance Coverage / Declaratory Judgment / Standing
Holding
Affirmed. Third-party claimants have standing to participate in a declaratory judgment action against an insurer, even before the underlying liability case is resolved.
Discussion
This Florida appellate decision addresses whether an injured claimant can participate in a coverage dispute before liability is determined. The issue arose in a declaratory judgment action filed to determine insurance coverage obligations.
The insurer challenged the standing of the third-party claimant, arguing that the claimant’s rights were not yet established because the underlying liability case had not been resolved. The question was whether a claimant who has not yet obtained a judgment can still litigate coverage issues.
The Third District held that the claimant did have standing. The court concluded that a third-party claimant has a sufficient interest in the outcome of the coverage dispute to participate in the declaratory judgment action, even before the underlying case is finalized.
Practical Implications
- Third-party claimants may actively participate in coverage litigation before liability is resolved. This can increase complexity in claims handling.
- Insurers may face earlier challenges to coverage positions, which can affect litigation strategy and timing.
- Coverage disputes may proceed in parallel with the underlying liability case, impacting evaluation and settlement posture.
Palm Beach Surgery v. Grazioli
Fla. 3d DCA (2026) – Medical Negligence / Pre-Suit Requirements / Negligent Credentialing
Holding
Certiorari granted. The negligent credentialing claim should have been dismissed because it was not properly investigated during pre-suit and was not supported by the required expert affidavit. Each medical negligence claim must independently comply with Chapter 766 pre-suit requirements.
Discussion
This Florida appellate decision focuses on pre-suit compliance in medical negligence cases, including negligent credentialing claims. The plaintiff asserted multiple claims against healthcare providers, including allegations related to credentialing practices.
The defendant challenged the claims on the basis that they were not properly investigated during the statutory pre-suit process and were not supported by a corroborating expert affidavit, as required under Florida’s medical malpractice framework.
The plaintiff argued that pre-suit compliance should be evaluated broadly. Under that view, as long as some claims against each defendant were supported, individual deficiencies should not require dismissal of separate claims.
The Third District rejected that position. The court held that each distinct medical negligence claim must independently satisfy Chapter 766 requirements. Because the negligent credentialing claim was not properly supported during pre-suit, it should have been dismissed. The opinion also provides a summary of the elements of negligent credentialing claims under Florida law.
Practical Implications
- Each medical negligence theory, including negligent credentialing, must independently meet Florida pre-suit requirements.
- Failure to obtain proper expert support at the pre-suit stage can result in early dismissal of specific claims.
- Pre-suit compliance remains a critical defense tool in healthcare-related liability claims.
Chetu v. CA Short Co.
Fla. 4th DCA (2026) – Contract Law / Damages / Consequential Damages
Holding
Reversed. Consequential damages can be contractually waived, and the trial court erred by awarding those damages where the contract expressly prohibited them.
Discussion
In this Florida appellate decision, the dispute arose from a contract that included a provision limiting the types of recoverable damages. Specifically, the agreement barred recovery of consequential damages, which are indirect losses that result from a breach rather than the breach itself.
Despite that contractual limitation, the trial court awarded consequential damages to the plaintiff. The defendant appealed, arguing that the contract clearly prohibited that category of damages.
The Fourth District agreed and reversed. The court held that parties are generally free to contractually limit or exclude consequential damages. Where the contract contains a clear and enforceable limitation, courts must apply it as written. The trial court therefore erred in awarding damages that were expressly barred.
Practical Implications
- Contract provisions that waive consequential damages are enforceable in Florida and can significantly limit exposure.
- Claims involving contractual disputes should include careful review of damage limitation clauses during evaluation.
- Enforceable damage waivers can impact valuation and settlement strategy by narrowing potential recovery.
Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.
