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I’ve previously written about the “claims file privilege” in the state of Florida. In that blog post, Obtaining the Insurance Company Claims File, I discussed that the “claims file privilege” is a judicially created privilege and as a result of Florida abolishing common law privilege, privileges cannot be derived from judicial construction. Florida Statutes 90.501-90.510 discuss the applicable privileges in Florida, and “claims file” is not one of them.
Continue Reading The “Claims File Privilege” in Florida

In Florida, insurance defense attorneys often cite the “claims file privilege.” This “privilege” spawned from a series of overly broad court opinions over the last several years. Generally, the “claims file privilege” protects documents in the claims file created and maintained by the insurance carrier. Effectively this allows insurance companies to hide documents by merely stamping it as a part of the claim file. This “privilege” has annoyed many plaintiff attorneys over the years; but how did this privilege come about?
Continue Reading Obtaining the Insurance Company Claims File

Merlin Law Group is closely monitoring a case pending before the South Carolina Supreme Court to see how it answers the question: “Does South Carolina law support application of the ‘at issue’ exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer?”…
Continue Reading Does An Insurer Waive Privilege for Attorney-Client Communications in the Claims File By Denying Bad Faith?

Last week I blogged about how the recent Willis v. Swain case ruling out of Hawaii, may impact and shape future cases as we move forward full-steam into 2014. Looking back at the past year, it’s also important to mention a ruling from a Washington state court that will be helpful to insureds in efforts to procure bad faith damages. It is well known in the litigation realm that plaintiffs and their attorneys are continually frustrated when trying to obtain discovery of the claim file – only to find numerous redactions in the file during the adjusting period accompanied by a privilege log stating that these communications are attorney-client privilege.…

Continue Reading In Washington, There May Be No Attorney-Client Privilege for Insurers During the Adjusting of a Claim

This blog is an extension of my September 27th and October 18th posts. The decision that is the focus of today’s blog is brief and not-so-recent, but one of the holdings toward the end of the opinion is very well put and worth noting.
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Continue Reading Contractual and Extra-Contractual Discovery Overlap: Dynamite Discovery Decisions, Part 19

In the Olin Corp. case,1 one of Olin Corporation’s (“Olin”) three carriers admitted only a small amount of liability and the other two delayed making a coverage decision. So, Olin filed suit in federal court against all three, seeking entry of a declaratory judgment that it was entitled to coverage.
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Continue Reading Reinsurance Discoverable – Dynamite Discovery Decisions, Part 5

Last week’s post, The Big Picture in Discovery of Insurer Claims Practices, discussed a case from the Supreme Court of Kentucky that provided an overview of how Courts tie together various principles of discovery that are generally raised in the discovery of bad faith cases. General rules of bad faith discovery vary between states and the types controversies at issue. An Indiana federal court decision, Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D. Ind. 1991), is a classic example.
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Continue Reading Overcoming Work Product Objections that Relate to an Insurer’s Claims Investigation

Over the last few weeks, the Friday blog post has addressed the different approaches that can be used by plaintiff’s attorneys when battling evasive discovery tactics used by insurers in bad faith cases. We discussed the fact that, in a bad faith lawsuit, an insured is entitled to a plethora of information that might not otherwise be discoverable. We’ve also mentioned claims files quite a bit, but I realized that we had not really discussed in detail what should be in an insurer’s claims file, how it can help you in your bad faith lawsuit, and why you may be entitled to it. So, here goes……

Continue Reading Plaintiffs are Entitled to the Claims File in a Bad Faith Lawsuit