(addressing work product protection for material created by an insurance company in the third party insurance context; ultimately finding that the materials deserved work product protection, and that plaintiff could not overcome the work product protection; "In view of such decisions, including for instance, APL Corp. v. Aetna Casualty & Surety Co., 91 F.R.D. 10 (D. Md. 1990), relied upon by McCullough, it might be supposed that adjuster reports prepared in advance of the filing of a claim may virtually never qualify as privileged work product. The difficulty with such a supposition, however, is that most cases denying work product protection to adjuster reports involve 'first party' insurance coverage, as distinguished from 'third party' or liability insurance coverage as is involved in this case."; "First party insurance is procured to indemnify an insured against a covered loss the insured has sustained. Adjuster reports prepared with respect to such claims are routine and are usually intended to enable the insurance company an opportunity to pay or deny the claim. Further, the prospect of litigation is remote since it will ensue only if a dispute arises between the insurer and insured regarding the insurer's contractual obligation pursuant to the insured's policy."; "By contrast, in the case of third party or liability insurance, an insured obtains insurance to protect against liability claims of third persons. . . . That liability, moreover, is an insured risk which, for all practical purposes, can only be established in favor of the third party against the insured by litigation in a court of law. Accordingly, when an insured is involved in an insured event occurrence, such as an automobile accident, reasonably giving rise to risk of liability, the liability insurer has an incentive to investigate the circumstances surrounding that occurrence in order to fulfill its obligation to its insured to defend against a third party potential action. Because liability insurance, unlike first party insurance, essentially constitutes 'litigation insurance,' Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898, 900 (1965), many courts have held that adjuster reports prepared on behalf of liability insurers are prepared in anticipation of litigation and constitute privileged work product."; quoting the New York judge in the Kandel case as explaining that "'automobile liability insurance is simply litigation insurance'"; noting that earlier Virginia cases have taken different positions on the work product doctrine's applicability to materials generated by an insurance company in a third party insurance context; "Several Virginia circuit judges have reached the same conclusion in cases involving liability insurance, see, e.g., Lewis v. Pomponio, At Law No. 129912, 19th Judicial Circuit of Virginia, June 9, 1995 (Hon. F. Bruce Bach); Whitehurst v. Lloyd, At Law No. 15964, 20th Judicial Circuit of Virginia, September 6, 1995 [37 Va. Cir. 224] (Hon. Thomas D. Horne), while others have reached the opposite conclusion. Cf., Schoonmaker v. Rogester, CL 94-3969, 2nd Judicial Circuit of Virginia, August 17, 1995 (Hon. Robert B. Cromwell, Jr.); Overton v. Dise, At Law No. 130350, 19th Judicial Circuit of Virginia, November 9, 1994 (Hon. Robert W. Wooldridge)."; ultimately finding the work product doctrine applicable; "Although not all insurance adjuster reports prepared for liability insurers necessarily constitute work product, the facts of this case lead me to conclude that The Hartford's adjuster's report was prepared in anticipation of litigation and is privileged as work product. The Hartford insured Standard and its employee, Counts, against liability to third parties arising from the ownership, operation, or maintenance of the insured vehicle. A multi-vehicle accident occurred involving serious injuries to strangers to the insurance contract. On the basis of these circumstances, The Hartford has sustained its burden by demonstrating that its adjuster's report was prepared in anticipation of litigation that might be initiated by or on behalf of those injured in the accident."; also finding the plaintiff could not overcome the work product protection; "Further, it has not been shown that there are not other witnesses who are able to afford facts related to Counts' driving immediately before the accident. McCullough has failed to demonstrate a substantial need for the adjuster's report.")
Case Date |
Jurisdiction |
State |
Cite Checked |
1996-01-01 |
State |
VA |
B 12/09 |