05-2750 ALLSTATE V. SWAIN

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State: Florida

Court: Florida Third District Court

Docket No: 05-2750 ALLSTATE V. SWAIN

Case Date: 02/15/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006

ALLSTATE INSURANCE COMPANY, Petitioner, vs. JOAN SWAIN, Respondent.

** ** ** ** ** ** LOWER TRIBUNAL CASE NO. 03-3547 CA13 CASE NO. 3D05-2750

Opinion filed February 15, 2006. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Jerald Bagley, Judge. Rumberger, Kirk & Caldwell and David B. Shelton (Orlando), for petitioner. Pertnoy, respondent. Solowsky & Allen and Richard L. Allen, for

Before FLETCHER, WELLS, and SHEPHERD, JJ.

FLETCHER, Judge. Allstate Insurance Company petitions this Court for a writ of certiorari to quash two orders from the circuit court which

compel it to produce certain documents and information to its insured, Joan Swain. Because we find the requested discovery

not relevant to the litigation and no need for them was shown, we grant the petition. Swain is employed by Allstate as an insurance agent. In 1996, she and others filed an ERISA action against Allstate in federal court alleging mismanagement of their pension fund. federal court ruled against the employees finding that The the

action had been litigated in bad faith.

This resulted in the

entry of an order awarding Allstate $300,167.50 in attorney's fees and $2,782.05 in costs. In addition to being her employer, Allstate is also Swain's insurer under a personal umbrella policy which affords liability coverage in the amount of $2,000,000 (in excess of the limits of her homeowners and condominium policies). Swain requested

coverage under this policy for the judgment for fees and costs. In response, the Allstate to filed determine the instant the declaratory fee/cost action

asking

court

whether

judgment

constitutes damages based on personal injury under the terms of the insurance contract. Swain subsequently served Allstate with

interrogatories and requests for production to which Allstate objected. The trial court sustained some of the objections but Specifically, Allstate was ordered to provide

overruled others.

information and documents regarding the drafting, marketing, and

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interpretation of its umbrella policies; the training of its agents and employees as to said policies; and any claims made under the policies on which fees and/or costs were paid. 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); State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242, 244 (Fla. 3d DCA 2002). If, after construing the policy, the court finds that more than one interpretation is possible, it must resolve the ambiguity against the insurer who drafted the language of the insurance contract. See Travelers Ins. Co. v. Smith, 328 So. 2d 870, The documents and

(Fla. 3d DCA 1976) (and cases cited therein).

information requested from Allstate are completely unnecessary to the determination of the coverage issue presented in this case. Allstate, therefore, should not be required to comply See Scottsdale Ins. Co. v. Camara

with the discovery requests.

De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So. 2d 250, 252 (Fla. 3d DCA 2002) ("The discovery sought is of dubious relevance and no showing has been made for its need in a declaratory action which presents legal issues and will likely be decided on the court's interpretation of the insurance

contract. . . . ").

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Accordingly, we grant the petition and quash the orders compelling Allstate to answer the subject interrogatories and requests for production propounded by Swain. Petition granted; Orders Quashed.

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