My sister, Emily Merlin, has a bachelor’s degree in paralegal administration from the University of West Florida. She reminds me that she can do anything that I can as a lawyer except give legal advice, take depositions or go to hearings. The truth is that paralegals help our policyholder clients and can become subject matter experts. They can make the difference between winning and losing a case.
Bob Bluni retired as a paralegal from our firm yesterday. He was a subject matter expert in the discovery of insurance claims files and how we could obtain them. I think part of that came from his investigative training as a police officer from Wyoming and Miami Beach before turning to paralegal work. He was a valuable team member that will be sorely missed. When I spoke with him this morning, he said he started off his retirement by “sleeping in.”
Claims files and the activities of those making decisions on claims are often held back or hidden from discovery by insurance companies during litigation. It is important to know the types of insurance at issue, the issues of the case, and the state law regarding the transparency of those claims handling files once litigation starts.
For example, one marine case involving a vandalism loss to a boat in New York set forth the standard for discovery of the claims file:
The defendants issued a policy insuring the plaintiffs’ boat, and the plaintiffs made a claim under that policy asserting that the boat had been vandalized. The defendants denied the claim. The plaintiffs commenced this action, inter alia, to recover damages for breach of the insurance policy, and moved, among other things, to compel the defendants to produce an unredacted copy of an electronic claims diary prepared by an employee of the defendants, as well as certain letters from the defendants’ counsel to the defendants. The material sought by the plaintiffs had been created prior to the defendants’ denial of the claim, and the defendants’ counsel drafted the letters while counsel conducted an investigation of the claim on behalf of the defendants. In opposition to the motion, the defendants argued that the material was protected by the attorney-client privilege (see CPLR 3101[a], [b]; 4503[a]). After conducting an in camera inspection, the Supreme Court granted the subject branch of the plaintiffs’ motion. The defendants appeal.
‘[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business. Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured’ (Bombard v Amica Mut. Ins. Co., 11 AD3d at 648 [citations and internal quotation marks omitted]; see Sigelakis v Washington Group, LLC, 46 AD3d 800, 800-801; Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191; Bertalo’s Rest. v Exchange Ins. Co., 240 AD2d 452, 454-455; Agovino v Taco Bell 5083, 225 AD2d 569, 571; Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101; see also Flex-O-Vit USA v Niagara Mohawk Power Corp., 281 AD2d 980, 981).
Here, after the in camera review, the Supreme Court properly directed disclosure, as the materials sought by the plaintiffs were prepared as part of the defendants’ investigation into the claim, and were not primarily and predominantly of a legal character.Melworm v. Encompass Indem. Co., 112 A.D.3d 794, (N.Y. App. Div. 2nd Dept. 2013)
The best insurance discovery paralegals discern when claims files are not fully turned over and can suggest legal methods to obtain these and draft motions to compel the production. Doing this type of work over a period of years truly makes them an expert.
We will miss Bob Bluni and wish him an enjoyable and deserved retirement.
Thought For The Day
The trouble with retirement is that you never get a day off.