SEPTEMBER 2018 BAD FAITH CASES: RESERVES DISCOVERABLE IN BAD FAITH ACTION; WORK PRODUCT PROTECTION DOES NOT ARISE WITH MERE SUGGESTION OF LITIGATION (Philadelphia Federal)

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This discovery dispute arose in a UIM bad faith case over the insurer’s seeking to reduce benefits after taking the position it had overpaid for lost income.

The insurer refused to produce claims file materials based on the work product doctrine. These included (1) employee mental impressions and opinions about the claim and (2) reserve information. The court ordered the parties to meet and to try and reach agreement on the date the insurer reasonably anticipated litigation. If any document remained in dispute, these would be considered for in camera review. The insurer ultimately submitted redacted and unredacted claim filed documents to the court, and an annotated privilege log identifying the disputed documents.

Among other things, the court observed that “discovery disputes involving an insurance company’s claims file often present problems for the parties because the ordinary course of an insurer’s business involves evaluating its policyholder’s claims.” It stated that “The temporal trigger for work product protection in this context is the point in its investigation an insurance company’s activity shifts from mere claims evaluation to an anticipation of litigation.” The burden is on the insurer to “demonstrate that it subjectively anticipated litigation, and that the anticipation was objectively reasonable.”

The court rejected the notion that protected was triggered when the insured’s lawyer told the carrier he wanted to discuss the case to avoid litigation. “[A] lawyer’s mere suggestion of a lawsuit is not enough to make an insurer reasonably anticipate litigation when the insurer’s evaluation of the claim is ongoing.” In this case, the ongoing claim payments indicated the evaluation process was continuing even after this statement.

The court next found there was no per se standard under the controlling federal rules barring discovery of reserves under the work product doctrine. It further noted that prior Pennsylvania state law, relied on by the carrier, left open the issue of whether reserves were discoverable in bad faith cases. The court added that the insurer did not provide factual support that the reserves were prepared in anticipation of litigation.

[See this blog post discussing discovery and reserves.]

Date of Decision: August 22, 2018

Neidich v. Progressive Advanced Insurance Co., U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 17-5375, 2018 U.S. Dist. LEXIS 142445 (E.D. Pa. Aug. 22, 2018) (Padova, J.)

 

 

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