The United States District Court for the Middle District of Florida has ruled regarding the discoverability of a broad array of documents sought by an insurer in a declaratory judgment action concerning application of a prior knowledge condition.  Berkley Assurance Co. v. Expert Grp. Int’l Inc., 2017 WL 4574599 (M.D. Fla. Oct. 13, 2017).  The court’s order included mixed rulings on seven of the insurer’s requests for production (RFPs) and one interrogatory.

The insurer issued a professional liability policy to the insured, which placed au pairs with American families.  The policy, which provided claims made coverage, was first issued in February 2015 and then renewed in February of 2016.  In November 2014, three months before the insurer issued the 2015 policy, the placement service was named as a co-defendant in an au pair class action alleging a conspiracy among au pair placement services to fix au pair wages.  None of the original underlying plaintiff au pairs alleged they were actually placed by the insured, and the insured did not disclose the suit in its application for the insurer’s 2015 policy.  In August of 2016, the complaint was amended to include au pair plaintiffs that the insured had placed.  The insured then sought coverage under the 2016 renewal policy.

The insurer filed coverage litigation, seeking a judicial declaration that the policy does not afford coverage because it applies only if: “[a]s of the inception date […], no insured, had any knowledge of any circumstance likely to result in or give rise to a ‘claim’ nor could have reasonably foreseen that a ‘claim’ might likely be made.”  The insurer later issued RFPs for a wide variety of the insured’s documents related to the class action, including communications with the insured’s prior insurers, in order to prove knowledge or foreseeability of a “claim,” at least at the time the initial complaint was filed, if not before.  The insured resisted the discovery requests and the insurer filed a motion to compel.

In ruling on the motion to compel, the court sided with the insurer on some, but not all, of the insurer’s requests.  The court denied as overly broad and burdensome: (1) requests for copies of the insured’s production and discovery responses in the underlying class action; (2) documents exchanged between the class action co-defendants; and (3) documents created by the insured regarding the class action.  The court also denied as irrelevant and/or disproportionate to the insurer’s needs requests for copies of class action joint defense agreements, and the insured’s applications for coverage from other insurers for the 2014 policy year forward.

The court granted the insurer’s request with respect to: (1) information related to the insured’s class action counsel, including the date retained and information on the scope of representation; (2) copies of the confidentiality order in the class action; (3) copies of any pre-suit demands made before the insurer’s 2015 policy was issued; and (4) the insured’s documents relating to potential coverage for the class action allegations from the insured’s prior insurer, including any coverage analyses, descriptions, or evaluations (subject to privilege and work product claims).