Category Archives: Discovery

That Portion Of Insurance Company’s Claims File Created Before It Has Reasonable Grounds To Reject A Claim Are Discoverable By Its Insured.

In Melworm v. Encompass Indem. Co.,  2012 NY Slip Op 22193, decided July 16, 2012, Judge Arthur M. Diamond provides a concise and thoughtful explanation on the attorney-client privilege afforded an insurance company’s claim file, created in the contact of deciding whether to pay on a property damage claim. Here is what he had to say:

“In order to raise a valid claim of attorney-client privilege, the party seeking to withhold the information must show that it was a “confidential communication” made between the attorney and the client in the context of legal advice or services.  Documents which are “not primarily of a legal character, but [express] substantial nonlegal concerns” are not privileged. However, “[s]o long as the communication is primarily or predominantly of a legal character, the privilege is not lost merely by reason of the fact that it also refers to certain nonlegal matters” …

… First, in a dispute between the insurer and the insured pertaining to an underlying claim, the claims file is generally not privileged material and the insurer cannot claim confidentiality against the insured. … 

“[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business” …  Reports prepared by insurance investigators, adjusters, or attorneys … before the decision is made to pay or reject a claim are thus not privileged and are discoverable … even when those reports are “mixed/multi-purpose” reports, motivated in part by the potential for litigation with the insured …

Merely because such an investigation was undertaken by attorneys will not cloak the reports and communications with privilege … because the reports, although prepared by attorneys, are prepared as part of the “regular business” of the insurance company. … Moreover, evaluating the extent of potential liability of the insured, which would necessarily include assessment of damages, is within the ordinary course of business of an insurance company, and therefore is not privileged even though it has been conducted by retained counsel to perform examinations under oath. …

Therefore, those communications which occurred before the date that the defendants had reasonable grounds to reject the claim … are not immune from discovery.”

*Discovery of a Copy of the Defendant’s Insurance Policy and Then Some.

Judge Ruchelsman of Supreme Kings just recently in Madar v 1333 Realty LLC, vacated a settlement of $25,000, because the defendant’s attorneys had mistakenly asserted that the defendant’s coverage was $25,000 instead of $250,000.

What I found interesting in this case was that one of defendant’s arguments against vacating the settlement, was that “plaintiff’s counsel could have requested to examine the declaration page or engaged in some discovery which would have revealed the error, thus, in essence it is the plaintiff who has acted with ‘unclean hands.’”

Why is this interesting? It is because on those occasions when I have requested at a preliminary or compliance conference that defendant produce their insurance policy, and not just the coverage amounts, I have universally been met with a resounding “no way!” So here, defendant’s arguments sounds as viable as that of a child being sentenced for the murder of his parents arguing that compassion should be shown by the Court because the defendant is an orphan.

C.P.L.R. 3101(f) provides that “A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. …”

In the First (Clarendon Natl. Ins. Co. v Atlantic Risk Mgt., Inc. ,) Second (Sullivan v Brooklyn-Caledonian Hospital,) Third (Morris v. Clements,) and Fourth (Anderson v House of Good Samaritan Hosp) Departments this has been interpreted to mean that the statute entitles plaintiff to disclosure of the policies themselves. Why defendants continue to object and why Courts agree with them, will remain a mystery to me.

But the problem that arose in Madar, strongly suggest that plaintiffs obtain a copy of defendant’s policy in all cases. But that is not the end of the story as, there is more that the plaintiff requires. In Folgate v. Brookhaven Memorial Hospital Plaintiff argued and the Court agreed that “he is entitled to know the number of claims brought against the defendant during the applicable policy period, the amount sought in each such claim and the amount already paid. Plaintiff asserts that without this information he cannot determine in advance of judgment the funds which may be available to him from defendant’s policy should he recover.” The Second Department is in agreement with this discovery policy. See Pamela Brandes v North Shore University Hospital. Judge York of Supreme New York, however did not allow such discovery in Weiner v. Lenox Hill Hospital and then the 1st Department in Weiner v. Lenox Hill Hosp., 224 A.D.2d 299 held that the order of Judge York “is unanimously affirmed for the reasons stated by York, J.” So until the Court of Appeals speaks on this issue, the right to obtain this information will depend upon where your case is pending.