Some readers have asked why Privilege Points have only rarely focused on work product issues in the insurance context. In addition to the sometimes dramatic differences between states' handling of this issue, a recent case articulates the paradox underlying the availability of work product in third-party insurance scenarios.
In Thakore v. Shelter Mutual Insurance Co., Case No. 6:23-CV-01108, 2024 U.S. Dist. LEXIS 179989 (W.D. La. Oct. 2, 2024), a pedestrian injured by an underinsured motorist sued defendant for failure to disclose additional insurance available from other companies. Plaintiff understandably sought documents relating to defendant's claims adjustment. Lawyers know that the work product doctrine does not protect documents created in the "ordinary course of business." The problem in the insurance context is (as this court recognized) that "the investigation and evaluation of claims is part of the regular, ordinary, and principal business of insurance companies." Id. at *8 (citation omitted). The court thus concluded that "claims adjuster notes are subject to disclosure absent specific evidence that the notes were specifically to aid in future litigation." Id. at *9.
Courts cannot avoid the basic conundrum that insurance companies' regular course of business is to investigate first- and third-party claims. Not all of them take the same approach as this court, so lawyers facing this scenario must carefully check the pertinent state's approach to this issue.
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