By Jeffrey T. Donner, Esq.

A good opinion for plaintiffs’ lawyers—and for privilege law in general

Here is the bottom line: just because an insured files a first-party bad-faith case does not mean the insurance company gets to dig through private attorney-client communications and opposing counsel’s mental impressions. That is what the trial court allowed in Kesler v. Progressive Select Insurance Co., and that is what the Second District shut down.

This is an important Florida opinion because insurers love trying to turn bad-faith discovery into a fishing expedition about what the claimant and her lawyer were “really thinking” during the underlying case. The Second DCA correctly said no. The focus in a bad-faith case is still on the insurer’s conduct, not on privileged conversations between the insured and her lawyer.

What happened in the case

The underlying facts are straightforward. Ms. Kesler was hurt in a March 2018 accident involving an underinsured driver in a stolen vehicle. She had $200,000 in available uninsured/underinsured motorist coverage with Progressive. She submitted records and bills and made a policy-limits demand. Progressive responded with a much lower offer—$43,000—saying that was about three times the value of her medical bills. She rejected the offer, filed a UM lawsuit, and filed a civil remedy notice. Progressive did not pay the claim during the sixty-day cure period. Later, after mediation failed and after Ms. Kesler underwent cervical fusion surgery, Progressive tendered the $200,000 limits. By then, she rejected it. The UM case went to trial, and the jury returned a verdict of more than $1.67 million.

After that, the bad-faith claim proceeded.

What Progressive tried to do

During bad-faith discovery, Progressive deposed the lawyer who had represented Kesler in the UM case. The insurer asked questions about whether Kesler would have settled for less than policy limits, when that might have happened, how the lawyer evaluated the case, how she calculated intangibles, and even how the law firm internally communicated about offers. Kesler’s former lawyer invoked attorney-client privilege and work-product protection. Progressive moved to compel. The trial court granted the motion.

That was the problem.

The trial court’s ruling effectively accepted Progressive’s position that by filing a bad-faith case, Kesler had somehow waived privilege on the issue of settlement willingness. The Second DCA rejected that premise.

What the Second DCA held

The appellate court granted certiorari and quashed the order to the extent it compelled the attorney to answer those questions. The court held that filing a first-party bad-faith action does not automatically waive attorney-client privilege or work-product protection.

That should not be controversial, but in actual litigation it matters a lot.

The court started with basic Florida law. Attorney-client privilege exists under section 90.502, and opinion work product is highly protected. Those protections do not disappear just because the opposing side says the information is relevant.

Why the attorney-client privilege issue mattered

Progressive argued that Kesler’s willingness to settle was relevant to whether the insurer “could have” settled the case, and therefore the insurer should be able to ask the lawyer about private communications with the client. The Second DCA said that is not how waiver works.

A party does not waive attorney-client privilege merely by filing suit. Waiver happens only when the party injects a claim or issue that necessarily requires proof through privileged communications. Kesler’s bad-faith claim did not require that. She could try to prove bad faith through objective evidence—her damages, the offers and demands, the timeline, and Progressive’s own conduct. She did not need to put private lawyer-client discussions into evidence to make her case.

That is the key point. The insurer wanted the communications because it thought they might help a defense. That is not the same thing as saying the plaintiff had waived privilege.

The court also correctly noted that if Progressive wants to argue that Kesler was never truly willing to settle, that is Progressive’s defense to prove. The insurer cannot create a waiver by saying, in effect, “we need your privileged communications for our defense.” Florida law does not work that way.

Why this opinion gets the focus right

One of the better parts of the opinion is that it brings the focus back where Florida bad-faith law says it belongs: on the insurer’s conduct. The court relied on the familiar principle that in a bad-faith case, the focus is not on the claimant’s conduct but on whether the insurer acted fairly and honestly and with due regard for the insured’s interests.

That matters because insurers often try to shift the discussion away from their own claim handling and into side issues about claimant strategy, posturing, timing, and motives. Sometimes those arguments are dressed up as “realistic opportunity to settle” defenses. Sometimes they are framed as “we need to know whether the plaintiff actually would have taken the money.” But Kesler makes clear that those arguments do not override privilege.

The work-product ruling matters too

The opinion is also strong on work product. Progressive argued, in substance, that in bad-faith litigation work-product objections do not really apply to the underlying case. The Second DCA rejected that too.

The court explained that Ruiz does not mean an insurer gets automatic access to claimant counsel’s work product. Ruiz dealt with insurer claim-file materials. It did not abolish work-product protection for the insured’s lawyers. If an insurer wants work product from opposing counsel, it still has to satisfy Rule 1.280(c)(4): it must show need and show that it cannot obtain the substantial equivalent without undue hardship. Progressive did not do that.

That is an important practical holding. There is a big difference between saying insurer claim files may be discoverable in a bad-faith case and saying the plaintiff’s lawyer’s mental impressions and internal files are now open season. Kesler refuses to blur that line.

The trial court’s order was too loose

The Second DCA also noted something trial lawyers see all the time: the order was far too broad. It granted the motion to compel without meaningful analysis, without identifying specific limits, and without explaining what questions had to be answered. In a privilege setting, that is dangerous. Once privileged testimony is forced out, the damage is done. That is why certiorari exists for “cat out of the bag” orders like this one.

Why this case is worth paying attention to

This opinion matters for a few simple reasons.

First, it confirms that filing a bad-faith lawsuit does not automatically open up attorney-client communications.

Second, it confirms that an insurer cannot manufacture waiver by claiming it needs the information for a defense.

Third, it confirms that work-product protections still apply to claimant’s counsel in bad-faith litigation.

Fourth, it reminds trial courts not to let discovery in these cases spin out into a wholesale examination of opposing counsel’s thought processes.

Final thought

Kesler is a sensible opinion. It does not do anything radical. It just enforces basic principles that should have been respected in the first place.

Florida bad-faith law gives insureds broad access to insurer-side claim handling materials for a reason: the insurer’s conduct is what is on trial. But that does not mean the insured loses the protection of confidential communications with counsel. The Second DCA got that right.

For lawyers handling first-party bad-faith cases, this is a useful case to keep handy the next time an insurer tries to turn a privilege fight into some vague argument about “fairness” or “full context.” Privilege is still privilege. Work product is still work product. And bad-faith discovery still has limits.