In APA-The Engineered Wood Association v. Glens Falls Ins. Co., Inc. (1999) 94 Wash.App. 556 972 P.2d 937, the Washington Court of Appeal was presented with the question of whether a Florida "bill of discovery" proceeding constituted a "suit seeking damages."
Under Florida law, a "plaintiff may file a complaint, called a pure bill of discovery, that 'seeks nothing more than otherwise unavailable information necessary to enable the Plaintiff to continue in the prosecution of, or to institute a suit for relief under a cognizable theory against the appropriate defendants.'" (Id. at p. 938.)
After such discovery is obtained, the complaint in that the action can be amended to pray for damages. (Ibid.)
The insured was named in a Florida bill of discovery proceeding and tendered defense of the action to its insurer. The insurer refused, contending the action was not a "suit seeking damages." (APA, supra, 972 P.2d at p. 939.)
The Washington Court of Appeal rejected this argument.
In doing so, the court stated it strove to "elevate substance over form" and, because the plaintiff "could easily have amended its complaint to add a prayer for damages, if and when it deemed its discovery efforts successful" (id. at p. 940), the bill of discovery proceeding "should be viewed as the discovery stage of a suit seeking damages." (Ibid.)
To do otherwise, the court concluded, "would accentuate the vagaries of Florida procedure, exalt form over substance, and contravene the national scope of APA's policy." (Ibid.)