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Seeking a protective order from insurance company corporate representative depositions in Declaratory Actions

Submitted by Jessica Gregory and Carri Leininger on 13 Nov, 2023

In declaratory judgment actions pertaining to insurance coverage for an underlying tort suit, an insured will often seek to depose the insurance company. However, if there are no factual issues in dispute, the insurance company should seek a protective order from such a request.

Florida Rule of Civil Procedure 1.280(b)(1) provides that a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. However, the court may for good cause, issue an “order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires” including an order that the discovery not be had. See Fed. R. Civ. P. 1.280(c)

Under Florida law, the construction of an insurance policy is a question of law to be determined by the court. E.g., Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla.1985). Thus, if the only issue in the declaratory action is the application of the policy language to the underlying facts, any requested discovery pertaining to an insurer’s handling of the claim, an insurer’s interpretation of the policy, and/or the insurer’s marketing and/or business practices (including the deposition of an insurance representative on the same), are irrelevant to a determination of whether the damages at issue fall within the terms of the policy’s coverage. See Allstate Ins. Co. v. Swain, 921 So.2d 717, 719 (Fla. 3d DCA 2006) (quashing orders which compelled discovery concerning, inter alia, drafting, marketing and interpretation of insurance policy, holding that construction of policy is a matter of law and if it is ambiguous, the ambiguity will be resolved against the insurer; therefore, the requested discovery was “completely unnecessary to the determination of the coverage issue.”) See also Diamond State Ins. Co. v. His House, Inc., No. 10-20039-CIV, 2011 WL 146837, at *4 (S.D. Fla. Jan. 18, 2011)(Holding that deposition of insurer’s corporate representative on topics such as policies, issuance and procurement of policies, underwriting considerations, application for insurance, and handling of claim, are irrelevant to the resolution of this declaratory action on insurance coverage, and denying motion to compel deposition).

Therefore, before agreeing to allow your insurance professionals to be deposed, you should consider whether a Motion for Protective Order is appropriate under the facts of your case.