attorney-client privilege Archives - The Insurance & Reinsurance Report

October 18, 2019 General / Uncategorized

Insurers’ Pre-Disclaimer Legal Privileges Against Disclosure Still Under Attack

Otsuka America, Inc. and Pharmavite LLC v. Crum & Forster Specialty Insurance Company[1] is the latest in what looks like ongoing erosion of an insurer’s right to rely on attorney-client privilege and the work product doctrine in connection with a determination of insurance coverage.

The insurer denied coverage to the plaintiffs for a nine million dollar product recall loss. The plaintiffs filed this action to resolve the insurance coverage issue.

The court correctly identified the governing law, recognizing that “attorney-client privilege attaches if information …

August 19, 2019 Uncategorized

No Privilege for Communications Between Insurance Adjuster and In-House Counsel

Courts around the country continue to refine the scope of the attorney-client privilege and the attorney work-product doctrine in the context of communications between an insurance company adjuster and the insurer’s in-house counsel. Recently, the United States District Court for the District of Colorado held that a claims adjuster’s emails, claim notes, and interoffice memoranda are not privileged, even though they involved the carrier’s in-house attorney. Olsen v. Owners Ins. Co., No. 18-CV-1665-RM-NYW, 2019 WL 2502201 (D. Colo. June 17, 2019)

In Olsen, …

May 8, 2015 Bad Faith and Extra-Contractual Liability

Trial Court Judge Erred in Requiring Insurer to Produce Claim Files in Bad Faith Lawsuit

The South Dakota Supreme Court found that an insurer did not waive its attorney-client privilege and, thus, was not required to produce 200 unredacted workers’ compensation claim files in a bad faith lawsuit. The Supreme Court found that the trial court judge erred in allowing the evidence in by not conducting an in camera inspection of the files before finding that the insurer had implicitly waived its attorney-client privilege regard its claim files.

This case involved a policyholder that sued his employer and the workers’ …

March 9, 2015 Bad Faith and Extra-Contractual Liability

Arizona Appellate Court Refuses To Vitiate the Attorney-Client Privilege When Insurer Does Not Advance Defense Based on Advice of Counsel

In Everest Indemnity Insurance Co. v. Rea, 2015 Ariz. App. LEXIS 9 (Ariz. Ct. App. Jan. 15, 2015), an Arizona appellate court held that Everest Indemnity Insurance Company (“Everest”) had not waived its attorney-client privilege by admitting that it had settled a case in good faith after consulting with counsel. As background, Rudolfo Brothers Plastering and Western Agriculture Insurance Company (collectively “Rudolfo”) alleged that Everest committed bad faith by entering into a settlement agreement that exhausted the liability coverage of an Owner Controlled Insurance …