In Family Security Insurance Co. v. Stein, No. 4D22-1468 (Fla. 4th DCA Feb. 8, 2023), Florida’s Fourth District Court of Appeal confirmed that, in a coverage action where the issue of coverage is in dispute, an insurer’s claim file and claim investigation materials are protected by the work product privilege. Family Security was a breach of contract action filed by two homeowners seeking homeowners insurance coverage for damage to their home. The insurer denied ... Keep Reading »
Discovery Issues
Proposed Amendments to New York’s Comprehensive Insurance Disclosure Act Would Ease Burden on New York Litigants
On December 31, 2021, New York Gov. Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, a sweeping reform to the disclosure obligations formerly required under CPLR 3101(f). As enacted, the Comprehensive Insurance Disclosure Act places restrictive new disclosure requirements on defendants and defense counsel litigating in New York. You can read our prior coverage of the act here. However, even as she was signing the bill into law, Gov. Hochul ... Keep Reading »
Claim Managers Take Note: New York’s Comprehensive Insurance Disclosure Act Places New, Immediate, and Retroactive Disclosure Obligations Under CPLR 3101(f) on Defendants and Defense Counsel
On December 31, 2021, New York Gov. Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, significantly increasing the disclosure requirements for defendants litigating in New York state court. The Comprehensive Insurance Disclosure Act amends CPLR 3101(f), which previously allowed plaintiffs in litigation to seek disclosure from defendants as to the existence and contents of any insurance agreement that may be used to satisfy a judgment. Under the ... Keep Reading »
Washington Federal Court Finds Attorney-Client Privilege Waived by Claims Handler’s Inadvertent Disclosure of In-House Counsel’s Coverage Opinion to Defense Counsel
A federal district court in Washington recently held that a claims handling mishap resulted in a waiver of the attorney-client privilege otherwise protecting a coverage opinion provided by the insurer’s internal legal department. The Underlying Action & Internal Claims Handling Phoenix issued a liability policy to Diamond Plastics Corporation (Diamond), which supplied sewer and water pipes to H.D. Fowler (Fowler). The pipes were installed during a utility ... Keep Reading »
New York Appellate Court Affirms Denial of Discovery Into Other Hurricane Sandy Claims
In Knickerbocker Village Inc. v. Lexington Insurance Co., New York's Appellate Division, First Judicial Department, dictated a clear rule for single-insured cases regarding the discovery of an insurer's treatment of insurance claims brought by other similarly situated insureds: that information is not "material and necessary" and thus not discoverable under section 3101 of the New York Civil Practice Law and Rules. This case arose out of a disagreement between ... Keep Reading »
Appearance by Video Might Be More Convenient for a Nonparty in Arbitration, but It Can’t Be Compelled Under the FAA
You find yourself in an arbitration needing documents and testimony from a nonparty. Your arbitrator issues a nonparty summons, "conveniently" requiring the out-of-state nonparty to appear by video at a hearing and produce documents to the parties and the arbitrator in advance. As it goes, the nonparty objects to the summons, refusing to comply without an order compelling it to do so. So you move to enforce the arbitral summons in the district court in which the ... Keep Reading »
New York Supreme Court Holds Documents Created By Counsel During Claims Handling Were Not Privileged
Pharmavite LLC filed a statement of loss under a policy issued by Crum & Forster Specialty Insurance Co. Crum & Forster disclaimed coverage, and Pharmavite commenced an action for breach of contract and declaratory judgment. After the parties disputed whether certain documents in Crum & Forster's privilege log were discoverable, the court conducted an in camera review and ordered Crum & Forster to disclose all documents. Crum & Forster moved to ... Keep Reading »
Colorado Federal Court Rejects Attorney-Client Privilege for Communications Between Insurer’s Claims Adjuster and In-House Counsel
In Olsen v. Owners Insurance Co., No. 1:18-cv-01665, 2019 WL 2502201 (D. Colo. June 17, 2019), the U.S. District Court for the District of Colorado found that neither the attorney-client privilege nor the work-product doctrine protected documents containing communications between the insurer's claims adjuster and its in-house counsel, where such documents did not contain legal advice or the insurer's strategy for defending against the civil action. In this case, the ... Keep Reading »
The Privilege Maintains Its Power: Texas Supreme Court Blocks Discovery of Insurer Attorney’s Billing Information
When (if ever) are an insurer’s attorney’s fees and billing information discoverable in a coverage dispute? Though the question is straightforward, the answer can vary from case to case and jurisdiction to jurisdiction. The Texas Supreme Court recently weighed in on the issue and found that an insurer’s attorney-billing information is not discoverable merely because the insurer challenges the insured’s request for attorney’s fees in coverage litigation. See In re Nat'l ... Keep Reading »
For “At-Issue Waiver,” The Best Defense May Not Be An Affirmative Defense
Silence is argument carried out by other means. –Ernesto “Che” Guevara As this blog has repeatedly documented, it can be hard for insurers to assert the attorney-client privilege in the context of bad faith litigation. One difficulty arises in states that enforce a presumption against the privilege in bad faith suits. In many cases, insurers need to waive the privilege, to assert a defense based on advice of counsel. Last month, a federal court in South Carolina ... Keep Reading »