Insurance companies and lawyers defending insurance companies oftentimes try to shield claims investigations from disclosure during discovery. Oftentimes, the claimed basis for non-disclosure is the work-product privilege. In light of the recent case of Gioioso, v. Thoroughgood’s Transport LLC, 2017 WL 3726028, claims investigations may have to be revealed unless the appropriate foundational basis for claiming the privilege is documented.
In that case, the insurer conducted an investigation of an accident. The insurer claimed that the work-product privilege should apply because at the time of the investigation there was a substantial probability that litigation would occur over the accident. The Plaintiff in the tort action argued that the investigatory documents were not privileged because they were created or gathered in the ordinary course of investigation of a claim. In this case, the Court found that the insurer, in opposing disclosure, did not establish privilege.
The case does help provide a road map as to when documents related to an investigation might be protected. Factors which might be helpful in establishing privilege are:
- Documentation that the primary purpose of the investigation was in anticipation of litigation, rather than for the purposes of making a coverage or claims determination.
- Documentation that the type of investigation that is being conducted is different than an ordinary claims investigation.
- Attorney involvement in the investigation of the claim.
In light of this new decision, claims adjusters should be trained to consider how best to protect investigations that are sensitive.
Patricia McHugh Lambert has over 35 years of experience in handling complex commercial litigation and insurance matters. Ms. Lambert has worked on national class actions, significant litigation and regulatory matters for Fortune 500 companies. She has also assisted small and mid-sized companies and business executives with contract, real estate and commercial disputes that needed to be resolved quickly and efficiently. Ms. Lambert is best known as an attorney who knows the field of insurance. She has represented insurers, policyholders, and insurance producers in disputes both in court and before the Maryland Insurance Administration. Ms. Lambert can be contacted at 410-339-6759 and firstname.lastname@example.org.