Complicated Work Product Issues Arise in the Insurance Context

June 4, 2014

Insurance disputes can trigger many attorney-client privilege and work product issues. The latter sometimes involve insurance companies’ work product claims, and the waiver impact of insureds disclosing their work product to their insurance companies.

In Amerisure Mutual Insurance Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12‑cv‑443-FtM‑29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. Apr. 29, 2014), the court noted that insurance companies preliminarily assess first-party insurance claims in the ordinary course of their business, and therefore normally cannot claim work product protection. The court acknowledged that an insurance company’s date of denial is “generally the boundary between documents that are generated under the work product doctrine and those discoverable as produced in the ordinary course of business.” Id. at *7. However, the court then applied a more fact-intensive analysis in denying work product protection for documents the insurance company created after it had issued a reservation of rights letter — but before the parties “reached an impasse as to their status and obligations under the insurance policies at issue.” Id. at *10‑11. About a month earlier, in Mine Safety Appliances Co. v. North River Insurance Co., No. 2:09-cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. Mar. 31, 2014), an insured filed a bad faith claim against its insurance company. Among other things, the court held that the insured waived its work product protection through “disclosure of [the insured’s] privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims.” Id. at *53.

Courts seem to stretch both privilege and work product concepts to protect communications between insureds and insurance companies when they are cooperating — but disputes between insureds and insurance companies can create unexpected and often counterintuitive work product doctrine application and waiver risks.