Separating Fact from Opinion: Documents Demonstrating the Claimant’s Desire to Settle Within Policy Limits are Discoverable in Bad Faith Litigation

October 2, 2025

In bad faith litigation, much in a claim file may be subject to disclosure.

While not as frequently contested, a Florida court recently reinforced the same holds true for a policyholder’s documents.

Mondamin Wilkins, who was insured by Progressive Select Insurance Company (“Progressive”) was involved in a motor vehicle accident.  The Policy carried Uninsured / Underinsured motorist limits of $100,000 per person / $300,000 per occurrence.   Wilkins retained Tragos, Sartes, and Tragos, PLLC (“Tragos”) and filed a lawsuit for Uninsured / Underinsured Motorist benefits against Progressive.  At trial, the jury entered a verdict for  Wilkins in excess of the policy limits, and the court entered judgment against Progressive.   Wilkins then filed a first-party statutory bad faith action in state court, which Progressive removed to federal court. Wilkins v. Progressive Select Ins. Co., 8:24-cv-1793-TPB-AAS, 2025 WL 02482645 (M.D. Fla. Aug. 28, 2025).

During the course of the bad faith litigation, Progressive sought discovery of Tragos’ litigation file from the underlying uninsured / underinsured motorist lawsuit.  Tragos’ produced its file; however, it withheld documents and provided a privilege log.  Progressive moved to compel production of certain withheld emails among Wilkins, Tragos, and his current bad faith counsel containing case strategy and communications.  The withheld documents Progressive sought were provided to the Court for an in camera review.

The Court first considered whether Progressive demonstrated a substantial need for the protected information within the withheld documents or whether Progressive would be otherwise able to obtain the information without undue hardship.  After finding Progressive demonstrated a substantial need for some of the documents, the Court ordered those documents be produced.

The Court distinguished these documents to be produced by pointing out that the these particular documents “directly bear[s] on the issue of the realistic possibility of settlement within the policy limits.” Wilkins, at *3.  Thus, those documents were classified as fact work product.  The other documents were determined to contain opinion work product, and the Court permitted those documents to be withheld and not disclosed.

The Middle District of Florida’s ruling serves as a reminder that the “totality of the circumstances” standard for evaluation of bad faith includes an analysis of the behavior not only the insurance company and its representatives, but also of the insured and his or her representatives.  Most claimants will assert the work product immunity over communications in the underlying case, but gathering the necessary information to ascertain the insured’s mentality, or state of mind to settle, through the negotiation process is essential. 

The trick is separating fact from opinion. 

With properly worded discovery requests, the Middle District of Florida has reinforced the requirement that a claimant’s fact work product is relevant to the “totality of the circumstances” and the ultimate determination of whether bad faith ever existed.